■ 


IOWA  ECONOMIC  HISTORY  SERIES 

EDITED    BY    BENJAMIN    F.    SHAMBAUGH 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


IOWA     ECONOMIC     HISTORY     SERIES 
EDITED    BY    BENJAMIN    F.     SHAMBAU6H 


HISTORY    OF 

WORK  ACCIDENT  INDEMNITY 

IN  IOWA 


\    BY 
E.     H.     DOWNEY 


PUBLISHED    AT    IOWA     CITY    IOWA     IN     1912     BY 
THE     STATE     HISTORICAL     SOCIETY     OF     IOWA 


7 


EDITOR'S  INTRODUCTION 

This  volume  on  the  History  of  Work  Accident  Indem- 
nity in  Iowa  is  in  a  sense  supplementary  to  the  author's 
more  general  work  on  the  History  of  Labor  Legislation 
in  Iowa,  which  appeared  some  two  years  ago  as  the  first 
contribution  to  the  Iowa  Economic  History  Series. 
Dealing  with  the  vital  subject  of  employers'  liability  and 
workmen's  compensation,  both  historically  and  compar- 
atively, the  present  volume  will  be  as  valuable  to  students 
of  comparative  legislation  as  it  will  be  interesting  to 
students  of  Iowa  history.  Indeed,  this  book  may  well 
serve  as  a  guide  to  constructive  legislation. 

Benj.  F.  Shambatjgh 

Offick  of  the  Superintendent  and  Editor 
The  State  Historical  Society  of  Iowa 
Iowa  City    1912 


H 


vu 


280813 


AUTHOR'S  PREFACE 

This  volume  is  an  outgrowth  of  the  chapter  on  ' '  The  Law 
of  Employers'  Liability"  in  the  writer's  History  of  Labor 
Legislation  in  Iowa  —  a  book  published  by  The  State  His- 
torical Society  of  Iowa  in  1910.  An  expansion  of  that  chap- 
ter which  would  bring  the  narrative  down  to  date  and  sup- 
plement the  analysis  of  Iowa  laws  with  a  comparative  survey 
of  accident  indemnity  in  other  States  and  countries  was 
undertaken  early  in  the  spring  of  1911  at  the  request  of  The 
State  Historical  Society  of  Iowa.  Originally  designed  as  a 
paper  for  the  Iowa  Applied  History  Series,  it  soon  appeared 
that  so  short  a  sketch  would  not  in  itself  be  adequate  in  deal- 
ing with  a  subject  at  once  so  large,  so  complicated  and,  in 
the  United  States,  so  comparatively  new.  The  study  has, 
accordingly,  grown  to  the  proportions  of  a  volume,  and  the 
paper  which  was  at  first  planned  has  been  issued  as  an 
abridgment  in  the  Iowa  Applied  History  Series. 

The  analysis  of  the  common  law  as  herein  presented  is 
somewhat  more  condensed  than  in  the  earlier  chapter  al- 
ready mentioned.  The  cases  have,  however,  been  brought 
down  to  September,  1912;  and  the  doctrines  of  "the  last 
clear  chance",  of  "acts  of  God",  and  of  the  servant's  as- 
sumption of  risks  due  to  the  master's  violation  of  safety 
statutes  have  been  more  fully  treated  in  order  to  incorporate 
later  decisions.  The  other  chapters  of  the  present  study 
are  entirely  new.  The  plan  of  the  work  and  the  inter-rela- 
tion of  the  several  parts  will,  it  is  hoped,  sufficiently  appear 


x  AUTHOR'S  PREFACE 

from  the  table  of  contents.  The  very  full  quotations  set 
out  in  the  Notes  and  References  are  intended  not  only  to 
justify  but  also  to  supplement  the  statements  in  the  text. 

The  printed  and  manuscript  sources  used  are  indicated  in 
the  Notes  and  References  which  follow  the  text;  but  the 
personal  assistance,  without  which  this  study  could  not  have 
been  successfully  prosecuted,  calls  for  further  acknowledg- 
ment.    The  writer's  thanks  are  due  above  all  to  Professor 
Benj.  F.  Shambaugh,  Superintendent  of  The  State  Histori- 
cal Society  of  Iowa.     It  was  upon  his  suggestion  that  the 
study  was  undertaken  and  to  his  counsel  and  criticism  much, 
of  whatever  merit  it  may  possess  must  be  attributed.     Val- 
uable suggestions,  as  well  as  original  data,  were  received 
from  the  Industrial  Commission  of  Wisconsin,  and  especial- 
ly from  its  chairman,  Mr.  C.  H.  Crownhart.     Chairman  John 
T.  Clarkson  and  Secretary  Welker  Given  of  the  Employers' 
Liability  Commission  of  Iowa  very  kindly  supplied  the 
writer  with  the  unpublished  results  of  the  Commission's 
labors.     The  writer  is  also  under  obligations  to  Messrs. 
Wallace  D.  Waple,  William  C.  Archer,  and  E.  E.  Watson  of 
the  Ohio  Liability  Board  of  Awards.     The  employers'  lia- 
bility commissions  and  the  industrial  accident  boards  of 
many  States  generously  responded  to  requests  for  informa- 
tion.   Many  courtesies  were  extended  by  the  State  Libraries 
of  Ohio  and  Wisconsin,  and  more  especially  by  Mr.  A.  J. 
Small  of  the  Iowa  State  Law  Library,  who  has  made  a  very 
complete  collection  of  workmen's  compensation  and  em- 
ployers' liability  materials  and  who  spared  no  pains  to  sup- 
ply the  writer  with  books  and  pamphlets  not  elsewhere 
accessible. 


AUTHOR'S  PREFACE  xi 

Invaluable  service  was  rendered  by  the  writer's  wife  in 
the  preparation  and  verification  of  notes  and  particularly  in 
the  compilation  of  the  illustrative  tables.  The  entire  vol- 
ume was  read  in  the  galley  proofs  by  Professor  John  R. 
Commons  of  the  University  of  Wisconsin.  Of  the  staff  of 
The  State  Historical  Society  of  Iowa,  Dr.  Dan  E.  Clark 
read  the  proofs  and  prepared  the  index,  Miss  Eliza  Johnson 
verified  many  of  the  notes  and  references,  and  Miss  Florence 
Franzen  compiled  the  table  of  cases. 

E.  H.  Downey 

The  State  Historical  Society  of  Iowa 
Iowa  City   1912 


CONTENTS 


I.     The  Need  of  Indemnity  for  Work  Acci 

DENTS 

II.     The  Genesis  of  Employers'  Liability 

III.  An  Analysis  of  Employers'  Liability 

IV.  The  Practical  Working  of  Employers 

Liability 

V.     Work  Accident  Indemnity  Abroad  . 

VI.     Indemnity    Legislation    in    the    United 
States      

VII.     The  Iowa  Employers'  Liability  Commis 

SION 

VIII.     Some   Standards  of  Indemnity  Legisla- 
tion   

Notes  and  References 

Table  of  Cases  Cited 

Index  .         


1 
11 
17 

71 
92 

107 

156 

167 
205 
309 
325 


THE  NEED  OF  INDEMNITY  FOR  WORK  ACCIDENTS 

The  employers'  liability  law  of  Iowa,  considered  as  a 
mode  of  indemnifying  work  accidents,  has  apparently  been 
discredited  by  experience.  Both  the  Iowa  Federation  of 
Labor  and  the  State  Manufacturers'  Association  have  de- 
manded the  abrogation  of  the  existing  law  in  favor  of  a 
system  based  on  fundamentally  different  principles.1  The 
Employer's  Liability  Commission,  appointed  by  the  Gov- 
ernor under  the  authority  of  the  Thirty-fourth  General 
Assembly,  has  recommended  a  compensation  act  on  lines 
novel  to  the  jurisprudence  of  this  State.  Twenty-six  for- 
eign governments  have  abandoned  the  principles  of  liability 
which  Iowa  still  retains  and  sixteen  of  the  United  States 
have  recently  enacted  laws  looking  to  the  same  end.2  It  is 
not  unlikely  that  similar  legislation  will  in  the  very  near 
future  be  adopted  by  the  General  Assembly  of  Iowa. 

The  present  is,  therefore,  an  opportune  moment  for  an 
historical  and  comparative  survey  which  shall  attempt  to 
show  how  the  present  situation  in  respect  to  indemnity  for 
work  accidents  arose,  what  are  the  grounds  of  dissatisfac- 
tion therewith,  and  what  effects  may  be  expected  in  the  light 
of  experience  here  and  elsewhere  from  proposed  modifica- 
tions thereof.  The  point  of  departure  for  such  a  study 
necessarily  is  the  social  need  which  accident  indemnity  is 
designed  to  serve  and  in  respect  to  which  alone  indemnity 
systems  can  be  compared  or  criticised. 

Work  accidents  in  the  United  States,  according  to  the 
best  obtainable  estimates,  annually  cause  more  than  35,000 


2  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

deaths  and  about  2,000,000  injuries,  whereof  probably  500,- 
000  produce  disability  lasting  more  than  one  week.3  To  em- 
ploy a  telling  comparison,  frequently  made,  the  industrial 
casualties  of  a  single  year  in  this  country  alone  equal  the 
average  annual  casualties  of  the  American  Civil  War,  plus 
all  those  of  the  Philippine  War,  increased  by  all  those  of 
the  Russo-Japanese  War.*  As  many  men  are  killed  each 
fortnight  in  the  ordinary  course  of  work  as  went  down  with 
the  Titanic.  This  single  spectacular  catastrophe  appalled 
the  civilized  world  and  compelled  governmental  action  in 
two  hemispheres;  while  the  ceaseless,  day-by-day  destruc- 
tion of  the  industrial  juggernaut  excites  so  little  attention 
that  few  States  take  the  trouble  to  record  the  deaths  and 
injuries. 

The  point  especially  to  be  emphasized  in  this  connection 
is  that  the  appalling  waste  of  life  revealed  by  the  above-cited 
estimates  is,  in  great  part,  unavoidable.  Doubtless  the 
number  of  work  accidents  may  be  considerably  reduced  in 
the  United  States,  as  it  has  been  reduced  in  Europe,  by  pre- 
ventive measures.5  Yet  when  all  possible  precautions  have 
been  taken,  modern  industry  will  continue  to  exact  a  fearful 
toll  of  life  and  limb.  Even  in  the  German  Empire,  which 
leads  the  world  in  accident  prevention,  there  were  reported 
in  the  last  year  (1911)  for  which  records  are  at  present 
available  662,321  work  injuries,  whereof  9687  terminated 
fatally  and  142,965  caused  disability  for  more  than  thirteen 
weeks.6  Scientific  accident  prevention  in  Germany  has  pro- 
duced a  lower  accident  rate  and  a  much  lower  rate  of  fatal 
accidents  than  obtains  in  the  United  States,7  but  it  has  left 
the  total  casualty  list  of  industry  deplorably  large.  Indeed, 
the  number  of  work  injuries  in  Germany,  as  elsewhere,  is 
increasing,  both  absolutely  and  relatively  to  the  numbers 
employed,  as  industrial  development  goes  forward.8  The 
ugly  fact  is  that  work  accidents,  in  the  main,  are  due  to 
causes  inherent  in  mechanical  industry  on  the  one  hand, 


NEED  OF  INDEMNITY  FOR  WORK  ACCIDENTS         3 

and  in  the  hereditary  traits  of  human  nature  on  the  other 
hand. 

In  the  first  place,  a  high  degree  of  hazard  inheres  in  pres- 
ent day  methods  of  production.  Modern  technology  makes 
use  of  the  most  subtle  and  resistless  forces  of  nature  — 
forces  whose  powers  of  destruction  when  they  escape  con- 
trol are  fully  commensurate  with  their  beneficent  potency 
when  kept  in  command.  Moreover,  these  forces  operate  not 
the  simple  hand  tools  of  other  days,  but  a  maze  of  compli- 
cated machinery  which  the  individual  workman  can  neither 
comprehend  nor  control  but  to  the  movements  of  which  his 
own  motions  must  closely  conform  in  rate,  range,  and  direc- 
tion.9 Nor  is  the  worker's  danger  confined  to  the  task  in 
which  he  is  himself  engaged,  nor  to  the  appliances  within 
his  vision.  A  multitude  of  separate  operations  are  combined 
into  one  comprehensive  mechanical  process,  the  successful 
consummation  of  which  requires  the  cooperation  of  thous- 
ands of  operatives  and  of  countless  pieces  of  apparatus  in 
such  close  interdependence  that  a  hidden  defect  of  even  a 
minor  part,  or  a  momentary  lapse  of  memory  or  of  atten- 
tion by  a  single  individual,  may  imperil  the  lives  of  hun- 
dreds.10 A  tower  man  misinterprets  an  order,  or  a  brittle 
rail  gives  way,  and  a  train  loaded  with  human  freight 
dashes  to  destruction.  A  miner  tamps  his  "shot"  with 
slack,  and  a  dust  explosion  wipes  out  a  score  of  lives.  A 
steel  beam  yields  to  a  pressure  that  it  was  calculated  to  bear, 
and  a  rising  skyscraper  collapses  in  consequence,  burying  a 
small  army  of  workmen  in  the  ruins. 

In  the  second  place,  human  nature,  inherited  from  genera- 
tions that  knew  not  the  machine,  is  imperfectly  fitted  for  the 
strain  put  upon  it  by  mechanical  industry.  Safely  to  per- 
form their  work  the  operatives  of  a  modern  mill,  mine,  or 
railway,  should  think  consistently  in  terms  of  those  me- 
chanical laws  to  which  alone  present  day  industrial  pro- 
cesses are  amenable.11    They  should  respond  automatically 


4  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

to  the  most  varied  mechanical  exigencies,12  and  should  be  as 
insensible  to  fatigue  and  as  unvarying  in  behavior  as  the 
machines  they  operate.13 

Manifestly  these  are  qualities  which  normal  human  be- 
ings do  not  possess  in  anything  like  the  requisite  degree. 
The  common  man  is  neither  an  automaton  nor  an  animated 
slide-rule.  His  movements  fall  into  a  natural  rhythm,  in- 
deed, but  the  beat  is  both  less  rapid  and  more  irregular  than 
the  rhythm  of  most  machines  —  with  the  consequence  that, 
he  fails  to  remove  his  hand  before  the  die  descends  or  al- 
lows himself  to  be  struck  by  the  recoiling  lever.14  It  re- 
quires an  appreciable  time  for  the  red  light  or  the  warning 
gong  to  penetrate  his  consciousness  and  his  response  is  apt 
to  be  tardy  or  in  the  wrong  direction.  Fatigue,  also,  over- 
comes him,  slowing  his  movements,  lengthening  his  reaction 
time,  and  diminishing  his  muscular  accuracy  —  thereby' 
trebly  enhancing  his  liability  to  accident.15 

The  machine  technology,  in  fact,  covers  so  small  a  frac- 
tion of  the  life  history  of  mankind  that  its  discipline  has  not 
yet  produced  a  mechanically  standardized  race,  even  in  those 
communities  and  classes  that  are  industrially  most  ad- 
vanced.16 And  so  there  is  a  great  number  of  work  injuries 
due  to  the  "negligence  of  the  injured  workman"  —  due, 
that  is  to  say,  to  the  shortcomings  of  human  nature  as  meas- 
ured by  the  standards  of  the  mechanician.  This  mal-adjust- 
ment  is  aggravated  by  the  never  ceasing  extension  of  ma- 
chine methods  to  new  fields  of  industry  and  the  continued 
influx  of  children,  women,  and  untrained  peasants  into  me- 
chanical employments.17  Accordingly,  the  proportion  of 
accidents  attributable  to  want  of  knowledge,  skill,  strength, 
or  care  on  the  part  of  operatives  appears  everywhere  to  be 
increasing.18 

There  is,  then,  no  prospect  that  the  "carnage  of  peace" 
will  be  terminated,  as  the  carnage  of  war  may  be,  within  the 
predictable  future.    An  industrial  community,  such  as  Iowa, 


NEED  OF  INDEMNITY  FOR  WORK  ACCIDENTS         5 

must  face  the  patent  fact  that  work  injuries  on  a  tremen- 
dous scale  are  a  permanent  feature  of  modern  life.  Every 
mechanical  employment  has  a  predictable  hazard :  of  a 
thousand  men  who  climb  to  dizzy  heights  in  erecting  steel 
structures  a  certain  number  will  fall  to  death,  and  of  a  thous- 
and girls  who  feed  metal  strips  into  stamping  machines  a 
certain  number  will  have  their  fingers  crushed.  So  regular- 
ly do  such  injuries  occur  that  every  machine-made  com- 
modity may  be  said  to  have  a  definite  cost  in  human  blood 
and  tears  —  a  life  for  so  many  tons  of  coal,  a  lacerated  hand 
for  so  many  laundered  shirts. 

This  " blood  tax"  of  industry,  as  it  may  well  be  termed, 
can  in  no  wise  be  shared  or  shifted.  There  can  be  no  com- 
pensation "for  the  torment  of  the  scorched  body,  for  the  de- 
lirium of  terror  in  the  fall  through  endless  hollow  squares 
of  steel  beams  down  to  the  death-delaying  construction 
planks  of  the  rising  skj^scraper,  for  the  thirst  in  the  night  in 
the  hospital,  for  the  sinking  qualms  of  the  march  to  the  op- 
erating-table, for  the  perpetual  ghostly  consciousness  of  the 
missing  limb  —  for  these  things  and  for  the  whole  hideous 
host  of  things  like  them,  following  upon  the  half  mil- 
lion accidents  that  happen  to  American  workmen  every 
year.     .     .     . 

' '  Nor  can  there  be  compensation  for  what  follows  the  tell- 
ing of  the  tale  by  some  fellow-workman  at  the  door  of  the 
stricken  comrade's  home.  There  can  be  no  compensation 
for  the  stretching-out  of  a  woman's  hand,  in  search  of  sup- 
port, against  the  door's  swinging  edge.  .  .  .  Payment  is 
beyond  human  power  for  the  emptiness  of  a  father's  chair 
while  the  girl  that  was  a  baby  is  growing  up  to  be  a  young 
woman  among  young  men. ' ' 19 

It  is  otherwise,  however,  with  the  expense  of  burying  the 
dead  and  caring  for  the  wounded  and  with  the  wages  lost 
through  the  death  or  disability  of  breadwinners.  These  pe- 
cuniary costs  of  work  accidents  may  be  distributed  in  any 


6  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

manner  that  the  community  may  deem  just  and  expedient. 
The  burden  may  be  imposed  wholly  upon  the  individual  suf- 
ferers and  their  dependents ;  it  may  be  distributed  over  in- 
dustrial workers  as  a  class  by  compulsory  accident  insur- 
ance, or  over  society  at  large  through  a  system  of  pensions ; 
or  it  may  be  taxed  to  the  consumers  of  the  products  that 
occasioned  the  injuries. 

The  consequences  of  imposing  this  pecuniary  burden  upon 
the  injured  workmen  and  their  families  are  such  as  no  civi- 
lized community  can  afford  to  tolerate.  Work  accidents,  in 
the  nature  of  the  case,  are  sustained  principally  by  wage- 
earners,  who  are  substantially  propertyless  as  a  matter  of 
course,20  who  have  no  savings  to  speak  of,21  and  whose  in- 
comes, for  the  most  part,  are  too  small  to  leave  any  adequate 
margin  for  accident  insurance.22  The  almost  total  absence 
of  property  or  savings  among  wage-workers  is  abundantly 
demonstrated  by  tax  returns  and  the  records  of  savings 
banks  and  life  insurance  companies.23  But  wage  statistics 
are  yet  more  conclusive  to  the  same  effect.  A  recent  inves- 
tigator of  this  subject,  Professor  Scott  Nearing  of  the  Uni- 
versity of  Pennsylvania,  concludes  that  one-half  of  the  adult 
male  wage-workers  of  the  United  States  receive  less  than 
$500  a  year ;  that  three-fourths  of  them  get  less  than  $600 ; 
and  that  only  ten  per  cent  are  in  receipt  of  more  than  $800 
annually.  As  to  women  wage-workers,  three-fifths  are  re- 
ceiving less  than  $325  yearly;  nine-tenths  are  paid  less  than 
$500;  and  only  one  in  twenty  is  paid  more  than  $600.24 
These  estimates  are  well  substantiated  by  the  findings  of 
other  investigators.  More  than  half  of  the  workmen  in- 
jured in  the  Pittsburgh  District  in  1907  were  earning  less 
than  $15  weekly  (making  no  allowance  for  unemployment) 
at  the  time  of  injury.25  Of  the  men  sustaining  industrial 
injuries  in  Minnesota  in  1909-1910,  forty-seven  per  cent 
were  receiving  less  than  $12.50  and  seventy-eight  per  cent 
were  receiving  less  than  $15  weekly.26 


NEED  OF  INDEMNITY  FOR  WORK  ACCIDENTS         7 

It  needs  no  argument  to  show  that  families  in  receipt  of 
incomes  such  as  these  can  have  neither  property,  savings 
accounts,  nor  insurance.  And  this  conclusion,  finally,  is 
corroborated  by  investigations  into  the  insurance  actually 
carried  by  wage-workers.  Of  132  married  men  killed  in 
Pittsburgh,  only  six  had  insurance  in  substantial  amount 
and  only  25  out  of  214  left  savings,  insurance,  and  trade 
union  and  fraternal  benefits  to  the  amount  of  $500  each.27 
In  New  York  State  175  workingmen  who  suffered  fatal  or 
permanently  disabling  accidents  had  insurance  in  the  aggre- 
gate sum  of  $18,635.28  Nor  are  these  extreme  instances  se- 
lected to  make  out  a  case.  The  average  value  of  13,448,124 
"industrial  insurance"  policies  in  force  in  1902  was  only 
$135. 2i*  The  unvarnished  fact  is  that  the  wage-earner 
neither  does,  nor  can,  provide  for  the  contingencies  of  sick- 
ness, accident,  and  unemployment.30 

To  the  wage-worker,  then,  even  Avhen  no  one  but  himself 
is  dependent  on  his  earnings,  the  loss  of  a  few  weeks'  wages 
means  serious  privation,  and  permanent  incapacity  means 
beggary.  But  quite  half  the  victims  of  work  accidents  are 
married  men,  and  a  majority  of  even  the  unmarried  con- 
tribute to  the  support  of  others.  For  example,  of  467  fatal 
accidents  in  Allegheny  County,  Pennsylvania,  258  were  sus- 
tained by  married  men  and  129  others  by  regular  contribu- 
tors to  the  support  of  relatives ;  whereas  only  80  of  the  467 
dead  were  wholly  without  dependents.31  Of  285  fatal  acci- 
dents investigated  in  Cuyahoga  County,  Ohio,  176  were  suf- 
fered by  heads  of  families.32  Of  1476  men  killed  on  the  job 
in  New  York  State,  679  were  the  sole  supporters  of  1775 
dependents,  167  were  the  principal  supporters  of  520  de- 
pendents, and  252  contributed  to  the  support  of  668  rela- 
tives —  leaving  but  378,  or  thirty-five  per  cent  of  the  whole 
number  of  deceased  entirely  without  economic  responsibili- 
ties.33    In  Wisconsin  forty-three  per  cent  of  the  injured 


8  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

workmen  whose  conjugal  condition  could  be  learned  by  the 
State  Bureau  of  Labor  were  married.34 

A  serious  work  accident,  therefore,  commonly  deprives 
a  necessitous  family  of  its  sole,  or  chief,  or  at  least  a  very 
important,  source  of  income.  The  inevitable  result,  in  the 
absence  of  systematic  accident  indemnity,  is  poverty,  and 
the  long  train  of  social  evils  that  spring  from  poverty.  It  is 
not  only  that  the  victims  of  unindemnified  work  accidents 
suffer  prolonged  incapacity  and  often  needless  death  from 
want  of  means  to  obtain  proper  care,  not  only  that  families 
are  compelled  to  reduce  a  standard  of  living  already  low 
and  that  women  and  children  are  forced  into  employments 
unsuited  to  their  age  and  sex,  with  resultant  physical  and 
moral  deterioration ;  but  it  is  that  the  ever-present  fear  of 
undeserved  want  goes  far  to  impair  that  spirit  of  hopeful- 
ness and  enterprise  upon  which  industrial  efficiency  so  large- 
ly depends. 

Lest  anyone  suppose  that  similar  conditions  do  not  obtain 
in  agricultural  Iowa,  let  it  be  recalled  that  the  railways  and 
mines  of  this  State  took  the  lives  of  114  workmen  and  in- 
flicted 14,863  injuries  upon  employees  within  the  decade 
1901-1910.35  How  many  factory  and  building  accidents  oc- 
curred during  the  same  period  can  not  be  told  from  extant 
records.  If  the  number  reported  since  1906  may  be  taken  as 
a  rough  guide  such  accidents  must  have  caused,  during  the 
ten  years,  more  than  100  deaths  and  at  least  12,000  in- 
juries.38 Taking  the  returns  at  their  face  value,  not  far 
from  125  deaths  and  3000  injuries  annually  are  sustained 
in  the  capitalistic  industries  of  Iowa. 

But  the  returns  can  not  be  accepted  at  their  face  value. 
The  accident  records  of  the  Iowa  Bureau  of  Labor  Statis- 
tics, especially,  are  notoriously  incomplete.37  The  slightest 
comparison  with  the  records  of  other  States  will  demon- 
strate their  unreliability.  During  the  first  eight  months 
of  the  current  year  there  were  reported    to  the  Wash- 


NEED  OF  INDEMNITY  FOR  WORK  ACCIDENTS         9 

ington  Industrial  Insurance  Commission  6985  accidents, 
whereof  5844  were  made  the  bases  of  claims  for  compensa- 
tion.38 At  this  rate  more  than  10,000  accidents  and  nearly 
9000  disabling  injuries  occur  in  a  single  year  among  the 
125,000  persons  in  hazardous  employments  in  the  State  of 
Washington.  Indeed,  the  actual  rate  appears  to  be  some- 
what higher,  since  full  returns  under  the  law  were  not  se- 
cured until  it  had  been  some  months  in  operation. 

The  Washington  returns  are  borne  out  by  those  of  other 
States.  The  Workmen's  Compensation  Commission  of 
Michigan  estimated  that  13,000  injuries  were  sustained  by 
the  250,000  industrial  workmen  of  that  Commonwealth  in 

1910.39  More  than  5000  accidents  causing  disability  for 
more  than  seven  days  were  reported  to  the  Wisconsin  In- 
dustrial Commission  in  the  ten  months  ending  June  30, 

1912.40  The  employments  covered  by  the  above-mentioned 
reports  engage  approximately  150,000  wage-workers  in 
Iowa.  Unless  it  be  supposed  that  such  industries  are  only 
one-third  as  hazardous  in  this  State  as  in  other  American 
Commonwealths,  the  official  return  of  3351  work  accidents 
in  1910  can  only  be  regarded  as  evidence  of  its  own  incom- 
pleteness. The  Iowa  reports  of  accidents  on  railways  and  in 
coal  mines  seem  to  be  fairly  trustworthy.  For  other  in- 
dustries the  official  returns  must  be  multiplied  by  two  or 
three  to  arrive  at  the  true  figures.  It  is  safe  to  say  that  the 
number  of  work  injuries  causing  disability  for  more  than 
one  week  runs  into  the  thousands  annually. 

Unless,  therefore,  hundreds  of  innocent  families  in  this 
State  are  each  year  to  be  rendered  destitute  through  deaths 
and  injuries  unavoidably  incurred  in  producing  the  com- 
munity's wealth,  systematic  indemnity  for  work  accidents 
must  be  provided.  How  the  cost  of  such  indemnity  may  be 
so  distributed  as  to  entail  the  minimum  of  loss  and  dam- 
age upon  the  Commonwealth  is  the  problem  to  which  the 
advocates  of  employers'  liability  reform  must  address  them- 


10  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

selves.  Since  the  existing  situation  is,  necessarily,  the  start- 
ing point  for  any  proposed  reform  an  attempt  will  be  made 
in  the  following  chapters  to  show  how  the  people  of  Iowa 
have  dealt  with  this  problem  hitherto,  and  with  what  results. 


II 

THE  GENESIS  OF  EMPLOYERS'  LIABILITY 

The  existing  legal  system  of  accident  indemnity  in  Iowa 
is  based  upon  the  common  law  of  employers '  liability.  The 
common  law,  to  be  sure,  has  been  considerably  modified  by 
statute,  and  it  has  also  received  something  of  a  specifically 
local  character  from  a  long  line  of  Iowa  decisions.  But 
neither  the  legislators  nor  the  courts  of  Iowa  have  over- 
thrown the  fundamental  principles  of  liability  laid  down  in 
England  and  in  the  older  American  Commonwealths  before 
the  question  of  responsibility  for  work  accidents  was  raised 
in  this  State.  To  understand  the  present  status  of  accident 
indemnity  in  Iowa  it  is  necessary,  therefore,  to  examine  the 
circumstances  under  which  the  common  law  doctrines  arose 
and  to  sketch  the  mutations  which  these  doctrines  have  un- 
dergone as  they  have  come  to  be  applied  to  modern  economic 
conditions. 

Work  accidents  in  England  and  America  began  to  assume 
serious  proportions  toward  the  middle  of  the  nineteenth 
century  with  the  development  of  machine  manufacturing, 
steam  transportation,  large-scale  mining,  and  other  char- 
acteristically modern  industries.  Wage  contracts,  then  as 
now,  made  no  provision  for  injuries  sustained  in  the  course 
of  work.41  There  was  no  legislation  upon  the  subject,  so 
that  the  courts  were  called  upon  to  determine  whether  the 
money  losses  occasioned  by  such  injuries  should  be  borne  in 
the  first  instance  by  employers  or  employees.  This  question 
had,  of  course,  to  be  decided  on  the  basis  of  existing  juristic 
principles.  But  there  were  no  controlling  precedents.42  A 
new  body  of  law  was  to  be  created  by  successive  decisions, 

11 


12  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

and  the  character  of  that  law  was  mainly  determined  by  the 
judges'  views  of  public  policy43 — that  is  to  say,  by  "the 
sum  of  prejudices,  and  the  political,  social  and  economic 
convictions  of  the  dominant  classes  of  which  they  [the 
courts]  themselves  are  a  part."44  The  genesis  of  em- 
ployers' liability  is,  accordingly,  to  be  sought  in  the  prin- 
ciples which  seventy-five  years  ago  governed  responsibility 
for  accidental  injuries  in  general,  and  in  the  prevalent  so- 
cial philosophy  by  which  these  principles  were  interpreted 
and  applied. 

In  the  second  quarter  of  the  nineteenth  century,  the  com- 
mon law  had  come  to  recognize  three  categories  45  of  unin- 
tended injuries  to  person  and  property,  as  respects  pecuni- 
ary liability  therefor:  (1)  injuries  caused  by  pure  misad- 
venture, for  which,  if  occurring  in  the  ordinary  relations  of 
life,  no  one  was  liable;  (2)  injuries  negligently  inflicted,  for 
which  the  negligent  person  was  liable;  (3)  injuries  arising 
from  "acts  done  at  peril",  for  which  the  doer  was  liable 
notwithstanding  he  neither  intended  the  injury  nor  was 
guilty  of  any  negligence  in  the  premises.46  The  important 
question  for  the  future  of  employers'  liability  was,  under 
which  of  these  classes  of  torts  should  work  accidents  be 
placed  ? 

Starting  from  the  immemorial  principle  that  every  one  is 
bound  so  to  conduct  his  own  affairs  that  others  shall  re- 
ceive no  harm  therefrom,47  it  might  have  been  possible  to 
hold  that  he  who  employs  dangerous  instrumentalities  for 
his  own  profit  does  so  "at  his  peril"  and  must  answer  in 
damages  for  any  injury  to  person  or  property  thereby  occa- 
sioned. Such  was  the  common  law  liability  of  one  who  kept 
a  vicious  animal,48  or  who  permitted  fire  49  to  escape,  or  cat- 
tle 50  to  stray,  from  his  premises.  This  principle,  that  cer- 
tain things  are  done  or  kept  at  peril,  was  applied  by  the 
courts  to  some,  at  least,  of  the  innovations  consequent  upon 
the  industrial  revolution.    Thus  it  was  held  in  England  that 


THE  GENESIS  OF  EMPLOYERS'  LIABILITY  13 

one  who  impounds  water  on  his  land,  or  who  brings  thereon 
"any  other  thing  which  will,  if  it  escape,  naturally  do  dam- 
age", must  keep  it  "at  his  peril".51  So,  too,  under  the  ear- 
lier decisions  the  user  of  a  steam  engine  was  liable  for  fires 
started  by  it  without  fault  on  his  part.52  Said  Lord  Justice 
Bramwell  in  deciding  a  traction-engine  case:  "It  is  just 
and  reasonable  that  if  a  person  uses  a  dangerous  machine, 
he  should  pay  for  the  damage  which  it  occasions;  if  the  re- 
ward which  he  gains  for  the  use  of  the  machine  will  not  pay 
for  the  damage,  it  is  mischievous  to  the  public  and  ought  to 
be  suppressed,  for  the  loss  ought  not  to  be  borne  by  the  com- 
munity or  the  injured  person. ' ' 53  Had  a  similar  view  of  the 
liability  for  work  accidents  been  adopted  by  the  courts,  the 
"ordinary",  or  "occupational",  risks,  in  extra-hazardous 
employments  at  least,  would  have  been  thrown  upon  the  em- 
ployer, and  indemnity  would  have  been  provided  for  much 
the  greater  number  of  industrial  injuries.  Such  might  very 
well  have  been  the  course  of  the  law  had  present  day  views 
of  collective  responsibility  for  socially-created  evils  been 
entertained  by  our  great-grandfathers. 

Unfortunately,  as  seen  from  the  modern  standpoint,  the 
leading  employers'  liability  cases,54  from  which  the  whole 
subsequent  juristic  development  received  its  tone  and  direc- 
tion, were  decided  at  the  very  moment  when  the  laissez  faire 
movement  in  economic  and  political  thought  reached  its  cul- 
mination.55 These  early  cases  arose  in  communities  where 
capitalism  was  just  coming  into  dominance,56  where  wage- 
workers  as  yet  had  no  effective  voice  in  government,  and 
where  the  propertied  and  business  classes,  who  possessed 
the  preponderating  political  influence,57  had  but  lately  se- 
cured the  abolition  of  hampering  feudal  restrictions  and 
were  impatient  of  any  restraint  upon  their  new-born  liberty. 

In  such  communities  and  under  such  social  conditions  was 
matured  the  highly  individualistic  natural  rights  philosophy 
of  the  common  law.58    The  protection  of  private  property 


14  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

became  the  chief  function  of  the  state.59  The  teaching  of 
Adam  Smith  that  the  unrestrained  pursuit  of  individual 
self-interest  will  necessarily  promote  the  general  welfare,80 
and  of  Thomas  Jefferson  that  that  is  the  best  government 
which  governs  least 61  were  deemed  irrefutable  if  not  ac- 
tually inspired.62  Superior  wealth  and  social  position  were 
looked  upon  as  "natural"  advantages  which  the  state  had 
no  right  to  neutralize.63  Given  only  freedom  of  contract, 
equality  before  the  law,  and  protection  from  violence  and 
fraud,  it  was  believed  that  every  man  might  safely  be  left 
to  fend  for  himself.64  Such  was  the  genesis  of  the  theory 
that  the  wage-worker  stands  on  equal  terms  with  his  em- 
ployer, that  he  is  able  to  choose  the  conditions  under  which 
he  will  consent  to  serve,  may  decline  any  employment  which 
he  deems  unduly  hazardous,  and  can  exact  extra  pay  for 
extra  risk. 

The  judges  of  a  half  century  since  were  steeped  in  this 
individualistic  philosophy.  The  older  and  more  influential 
among  them  had  gathered  their  impressions  of  industrial 
conditions  from  the  regime  of  handicraft  and  petty  trade, 
which  was  then  just  passing  away  but  which  had  been  domi- 
nant in  the  days  of  their  youth.65  All  had  learned  the  rudi- 
ments of  law  from  Blackstone,  who  was  inclined  to  subordi- 
nate the  public  good  to  private  right,66  and  had  imbibed  the 
principles  of  political  economy  from  those  disciples  of 
Jeremy  Bentham  who  took  the  individual  for  the  center  of 
the  economic  universe.67  Moreover,  in  point  of  birth  and 
association  the  judges  of  that  day,  almost  without  exception, 
belonged  to  the  propertied  and  business  classes,  and  in  con- 
sequence had  little  sympathy  with,  or  understanding  of,  the 
position  and  claims  of  wage-workers.68 

In  the  light,  then,  of  the  circumstances  of  seventy-five 
years  ago  it  is  not  strange  that  courts  should  have  sought  to 
restrict  the  master's  liability  for  work  accidents  within  the 
narrowest  possible  limits.    It  was  felt  that  to  make  the  em- 


THE  GENESIS  OF  EMPLOYERS'  LIABILITY  15 

ployer  bear  the  pecuniary  loss  of  injuries  due  to  ordinary 
trade  hazards  would  impose  an  intolerable  burden  upon 
business  enterprise,  retard  the  accumulation  of  capital,  and 
discourage  investment  to  the  serious  detriment  of  the  com- 
munity.69 

Ample  ground  for  such  restriction  of  liability  was  found 
in  existing  principles  of  the  common  law.  Liability  without 
fault  was,  in  the  second  quarter  of  the  nineteenth  century, 
highly  exceptional  and  anomalous,70  being  nearly  confined 
(1)  to  the  small  category  of  "acts  of  peril"  which  had  been 
inherited  from  primitive  English  law,71  (2)  to  cases  of  "im- 
puted fault",  like  the  liability  of  a  master  for  the  torts  of 
his  servant 72  or  of  a  husband  for  those  of  his  wife,73  and  (3) 
to  such  persons  as  common  carriers  and  inn-keepers  upon 
whom  unusual  liabilities  were  imposed  because  others  had 
no  practical  alternative  but  to  trust  to  their  fidelity  and  pru- 
dence.74 The  general  rule,  as  contra-distinguished  from 
these  exceptional  cases,  confined  liability  to  injuries  arising 
from  the  failure  to  use  reasonable  care.75  Moreover,  no  one 
ordinarily  was  under  any  legal  obligation  to  protect  another 
from  dangers  which  that  other  knew  of,  or  could  reasonably 
discover 76  and  guard  against,77  or  to  which  he  had  volun- 
tarily subjected  himself.78  So  a  shop-keeper  discharged  his 
duty  to  protect  his  patrons  from  personal  injury  if  he  kept 
his  premises  in  reasonable  repair  or  if,  neglecting  repairs, 
he  warned  them  of  dangerous  conditions.79 

The  foregoing  principles,  drawn  from  the  ordinary  vol- 
untary relations  of  life,  were  applied  without  mitigation  to 
the  relationship  of  employer  and  employee.  The  courts, 
adopting  an  academic  theory  of  "liberty  and  equality"80 
and  ignoring  the  actual  situation  of  the  parties  to  wage  con- 
tracts,81 treated  wage-workers  as,  in  the  fullest  sense,  volun- 
tary agents.82  Hence  it  was  held,  on  the  one  hand,  that  the 
employer  is  bound  merely  to  use  ordinary  care  for  the  safety 
of  his  employees,  and  on  the  other  hand,  that  the  employee 


16  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

takes  on  himself  the  risk  of  all  dangers  which  are,  or  reason- 
ably should  be,  known  to  him,  and  which,  therefore,  he  "vol- 
untarily encounters"  by  entering  upon,  or  continuing  in,  the 
service.  Upon  these  foundations  was  reared  the  whole  fab- 
ric of  employers'  liability  doctrines  —  doctrines  thoroughly 
consonant,  in  the  main,  with  the  genius  of  the  common  law 
and  with  the  social  philosophy  prevalent  at  the  time  and 
place  of  their  origin.83 

The  social  conditions  under  which  the  common  law  rules 
of  employers'  liability  originated,  and  to  which  they  were 
(presumably)  adapted,  have  long  since  passed  away.  The 
machine  industry  has  in  the  course  of  three  generations 
wrought  a  revolution  in  the  economic  life  of  civilized  man- 
kind greater,  in  many  respects,  than  the  changes  of  the  pre- 
ceding three  thousand  years.  The  new  mode  of  industrial 
life  has  brought  in  its  train  new  views  of  social  responsi- 
bility and  of  the  scope  and  ends  of  government.84  Whence 
it  happened  that  the  "system  of  natural  liberty"  had 
scarcely  received  definitive  formulation  before  it  began  to 
be  discredited  and  that  it  now  finds  a  precarious  lodgment 
only  in  the  archaic  abode  of  constitutional  law.85  But  the 
employers'  liability  doctrines,  which  owed  their  genesis  to 
the  society  of  artizans  and  shop-keepers  and  their  authenti- 
cation to  the  metaphysics  of  laissez  faire,  live  on  even  after 
they  have  been  condemned  by  the  very  classes  in  whose  sup- 
posed interest  they  were  invented.86 

How  juristic  principles  which  took  shape  some  three 
quarters  of  a  century  since  are  applied  in  Iowa  at  the  pres- 
ent day  will,  it  is  hoped,  sufficiently  appear  in  the  course  of 
the  ensuing  analysis. 


Ill 

AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY 

Throe  quarters  of  a  century  of  ever-increasing  litigation 
and  of  amendatory  legislation  in  scores  of  separate  jurisdic- 
tions have  made  employers'  liability  one  of  the  most  in- 
volved and  intricate  branches  of  the  law,  have  multiplied 
definitions  more  recondite  and  distinctions  more  elusive 
than  those  of  the  marginal  utility  theory,  and  have  given  rise 
to  conflicts  of  decisions  that  are  the  despair  of  jurists.87  A 
becoming  cognizance  of  his  own  limitations  might  well  deter 
a  mere  layman  from  rushing  into  a  field  so  beset  with  pit- 
falls for  even  the  trained  lawyer.  Yet  the  guiding  principles 
of  employers'  liability  are  neither  many  nor  difficult  to  com- 
prehend. It  is  in  the  detailed  ramifications  of  the  law,  and 
especially  in  the  variations  from  one  jurisdiction  to  another, 
that  confusion  is  encountered.  An  analysis  of  the  main  fea- 
tures of  employers'  liability  in  a  single  State,  accordingly, 
presents  no  insuperable  obstacles;  at  the  same  time  such 
an  analysis  is  essential  to  a  clear  view  of  the  situation 
which  the  present  reform  movement  in  Iowa  seeks  to  rem- 
edy. 

The  several  doctrines  comprised  in  the  law  of  employers' 
liability  will,  in  the  present  anlysis,  be  grouped  under  these 
captions:  (1)  duties  of  the  employer,  (2)  the  burden  of  oc- 
cupational risks,  (3)  the  fellow-servant  rule,  (4)  com- 
tributory  negligence  and  (5)  assumption  of  risk.  It  is  not 
claimed  that  this  arrangement  is  logically  unimpeachable; 
but  it  is  hoped  that  the  common  origin  and  the  mutual  rela- 
tions of  the  several  doctrines  will  be  made  sufficiently  clear 
in  the  course  of  the  analysis  based  thereon. 

17 


18  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

DUTIES  OF  THE  EMPLOYEE 

The  cardinal  principle  of  the  common  law  of  employers' 
liability,  upon  which  all  else  depends,  is  that  the  employer 
is  liable  only  for  such  injuries  as  are  due  to  some  "fault"  or 
negligence  on  his  part,88  that  is,  to  some  breach  of  the  em- 
ployer's legal  duty  to  provide  for  the  safety  of  his  em- 
ployees.89 It  seems  advisable,  therefore,  to  begin  the  pres- 
ent analysis  with  a  statement  of  the  extent  and  limits  of 
this  duty. 

It  was  laid  down  in  the  earliest  cases,  and  is  indeed  but  a 
particular  application  of  the  general  rule  governing  volun- 
tary relations,  that  a  master  is  bound  to  use  reasonable  care 
to  protect  his  servant  from  injury  while  engaged  in  his  ser- 
vice.90 Subsequent  decisions  have  defined  this  obligation  of 
the  employer  with  great  particularity  and  have  divided  it 
into  several  so-called  "absolute  duties":  (1)  to  provide  a 
safe  place  to  work; 91  (2)  to  furnish  safe  and  adequate  tools, 
appliances  and  instrumentalities  for  carrying  on  the 
work;92  (3)  to  hire  a  sufficient  number  of  reasonably  com- 
petent and  careful  servants ; 93  (4)  to  conduct  the  business  in 
a  safe  manner  with  sufficient  rules  for  the  guidance  of  em- 
ployees, where  such  rules  are  reasonably  necessary  to  their 
safety; 94  (5)  to  instruct  inexperienced  servants  in  the  safe 
performance  of  their  duties ; 95  (6)  to  warn  a  servant  of  dan- 
gers which  are,  or  in  the  exercise  of  reasonable  care  should 
be,  known  to  the  master,  but  which  are  not  known  to,  or 
readily  discoverable  by,  the  servant; 96  and  (7)  to  make  such 
frequent  and  thorough  inspection  of  working  place,  mate- 
rials, and  equipment  as  may  be  reasonably  necessary  to 
maintain  them  in  a  safe  condition.97 

None  of  the  foregoing  duties  of  the  master  is  absolute. 
He  does  not  warrant  the  safety  of  his  premises ; 98  it  is 
enough  if  he  maintains  "reasonably"  safe  conditions  and 
surroundings  of  work,99  so  far  as  that  can  be  done  by  the  ex- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  19 

ercise  of  ordinary  care,100  that  is,  such  care  as  a  person  of 
average  prudence  would  exercise  under  the  same  or  similar 
circumstances.101  Of  course  the  conduct  of  "a  reasonably 
prudent  and  careful  man"  can  afford  no  definite  standard 
of  " ordinary  care"  or  "reasonable  safety",102  since  what 
is  reasonable  will  depend  upon  the  character  of  the  under- 
taking in  hand  and  the  risks  attending  its  prosecution.103 
As  has  been  judicially  said,  "reasonable  care  demands  in- 
creased watchfulness  and  greater  caution  in  proportion  to 
the  dangerous  nature  of  the  instrumentality  employed;  that 
is,  'due  care'  means  care  which  is  reasonably  commensurate 
with  a  known  danger  and  the  seriousness  of  the  conse- 
quences which  are  liable  to  follow  its  omission."  104  Hence 
in  handling  electricity  "reasonable  care"  is  great  care.105 
So,  too,  it  is  negligent  to  run  a  train  at  high  speed  over  a 
road  bed  that  has  been  softened  by  recent  rains,  although 
similar  speed  would  not  be  dangerous  under  normal  condi- 
tions.106 

Reasonable  care  only  requires  the  master  to  provide 
against  dangers  that  can  reasonably  be  anticipated  10T  and 
to  remedy  conditions  of  which  he  has  knowledge,  actual  or 
constructive.108  Notice  will,  however,  be  presumed  when  a 
dangerous  condition  has  existed  for  such  a  length  of  time 
that  the  employer,  in  the  exercise  of  ordinary  care,  could 
have  discovered  it.109 

The  employer  is  not  required  to  use  the  safest  equipment 
that  can  be  obtained,110  nor  is  he  bound  to  adopt  any  new 
device  until  its  utility  has  been  sufficiently  tested  and  it  has 
been  shown  to  be,  as  a  whole,  better  than  the  appliance  al- 
ready in  use  for  the  same  purpose.111  Thus  it  is  not  neces- 
sarily negligent  to  operate  locomotives  equipped  only  with 
link-and-pin  couplers,112  or  to  leave  dangerous  machinery 
unguarded,113  although  practical  safety  devices  may  be 
known.  Ordinarily,  it  is  sufficient  if  the  employer  use  such 
precautions  as  are  customary  in  similar  establishments ; 114 


20  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

and  the  general  usage  of  employers  in  the  same  line  of  busi- 
ness may  always  be  shown  as  bearing  upon  the  question  of 
care.115  Proof  of  common  usage,  however,  is  not  proof  of 
care  llfi  and  is  no  defense  where  the  custom  is  in  itself  care- 
less.117 

The  only  definite  standard  of  ' '  reasonable  care ' '  appears 
to  be  that  afforded  by  statutes  expressly  enacted  for  the  pro- 
tection of  employees.  The  violation  of  such  a  statute  is 
negligence  per  se.lls  Thus,  it  is  negligent  to  operate  rail- 
way cars  not  equipped  in  accordance  with  the  automatic 
coupler  law,119  to  maintain  trolley  wires  at  a  lower  level  than 
is  permitted  by  city  ordinance,120  to  omit  machine  guards  121 
or  belt  shifters  122  where  such  appliances  are  prescribed  by 
the  factory  acts,  to  supply  a  less  amount  of  air  in  a  coal  mine 
than  the  mine  law  requires,123  or  to  operate  trains  at  an  ille- 
gal rate  of  speed.124  In  the  absence  of  such  statutory  com- 
mands or  inhibitions,  what  is  reasonable  care  can  only  be 
determined  by  the  particular  circumstances  of  each  case. 

The  master's  obligation  to  protect  his  servant  from  prob- 
able dangers  applies  only  while  the  latter  is  in  the  line  of 
his  duty :  one  who  voluntarily  undertakes  a  task  outside  the 
scope  of  his  employment,  or  who  goes  into  an  unauthorized 
place  of  danger,  becomes  a  mere  volunteer  or  licensee,  to 
whom  the  master  owes  no  duty  of  protection  until  his  peril 
is  discovered.125  But  a  servant  is  within  the  "scope  of  his 
employment"  in  engaging  in  work  which  he  customarily 
performs  with  the  knowledge,  actual  or  constructive,  of  the 
master  or  his  representative,  though  without  express  au- 
thorization.126 A  fortiori,  the  express  command  of  the  em- 
ployer or  his  responsible  representative  brings  the  act  com- 
manded within  the  line  of  the  employee's  duty.127  Where 
the  effect  of  such  an  order  is  to  expose  the  employee  to 
greater  peril  than  would  be  encountered  in  the  usual  scope 
of  the  latter 's  employment,  the  giving  of  the  command  is 
actionable  negligence.128 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  21 

Mere  proof  of  negligence  does  not  constitute  sufficient 
ground  of  recovery:  it  must  further  appear  that  the  negli- 
gence complained  of  was  the  proximate  cause  of  the  injury 
in  respect  of  which  recovery  is  sought.129  That  is  to  say, 
there  can  be  no  recovery  unless  it  is  shown  that  some  negli- 
gent act  or  omission  of  the  employer,  in  a  natural  and  con- 
tinuous sequence,  would  have  produced  the  employee's  in- 
jury, and  that  without  such  negligence  the  injury  would  not 
have  occurred.130  "Proximate  cause",  it  has  been  judicially 
said,  "is  probable  cause,  and  the  proximate  consequence  of 
a  given  act  or  omission  ....  is  one  which  succeeds 
naturally  in  the  ordinary  course  of  things,  and  which,  there- 
fore, ought  to  have  been  anticipated  by  the  wrong  doer."  131 
Hence  the  employer  is  not  liable  for  his  failure  to  provide 
against  improbable  contingencies.132  But  where  a  given  act 
or  omission  is  negligent  in  respect  of  its  probable  conse- 
quences it  will  be  treated  as  the  proximate  cause  of  an  injury 
which  would  not  have  occurred  but  for  such  negligence,  even 
though  the  accident  which  actually  takes  place  is  so  unusual 
or  extraordinary  that  it  could  not  have  been  foreseen.133 
So,  too,  where  the  employer's  negligence  concurs  with  that 
of  a  third  party,134  or  with  an  "act  of  God",13*'  to  produce  an 
injury,  the  employer  is  liable. 

The  plaintiff  in  an  employers'  liability  case  has,  of  course, 
the  "burden  of  proof"  to  show  both  that  his  employer  was 
negligent  and  that  such  negligence  was  the  proximate  cause 
of  the  injury  complained  of.136  That  is  to  say,  to  justify  re- 
covery both  of  these  essential  facts  must  be  established  by  a 
fair  preponderance  of  all  the  evidence  in  the  case.  Negli- 
gence and  proximate  cause  are  ordinarily  questions  of  fact, 
to  be  determined  by  a  jury  under  proper  instructions  from 
the  trial  judge.137  But  where  there  is  no  evidence  to  warrant 
a  finding  of  negligence,  or  where,  in  the  opinion  of  the  trial 
court,  reasonable  men  could  not  honestly  conclude  that  the 
alleged  negligence  of  the  employer  was  the  proximate  cause 


22  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

of  the  injury,  it  is  the  duty  of  the  court  to  direct  a  verdict 
for  the  defendant.138 

THE  BURDEN  OF  OCCUPATIONAL  RISKS 

The  cardinal  principle  of  no  liability  without  fault  mani- 
festly relieves  the  employer  of  all  responsibility  for  the  in- 
herent hazards  of  industry.  Despite  the  exercise  of  ordi- 
nary care  on  the  part  of  all  concerned,  slate  and  coal  will  fall 
from  the  roofs  of  mines,  railway  tracks  will  unexpectedly 
slip  on  softened  roadbeds,  signals  will  be  misread  by  train- 
men, dynamite  will  explode  prematurely,  steam  pipes  will 
burst,  molten  metal  will  splash  upon  those  who  handle  it,  and 
structural  iron  workers  will  slip  from  their  precarious 
perches  and  be  hurled  to  death.  These  and  countless  simi- 
lar occurrences,  accounting  in  the  aggregate  for  fully  one- 
half  of  all  industrial  injuries,139  are  no  one's  fault.  They 
are  inherent  hazards  of  the  work  and  the  risk  of  injury  from 
them,  under  existing  Iowa  law,  is  the  worker's  own. 

The  servant's  assumption  of  these  inherent  or  "ordi- 
nary" risks,  being  but  a  corollary  of  the  rule  which  makes 
the  master  liable  only  for  his  failure  to  use  reasonable  care, 
must  rest  upon  the  same  juristic  principles  and  the  same 
considerations  of  public  policy  as  the  main  rule  itself.  To 
be  sure,  the  courts  have  commonly  said  that  the  servant  as- 
sumes the  ordinary  risks  of  the  service  in  which  he  en- 
gages by  virtue  of  an  implied  term  in  the  contract  of  em- 
ployment.140 But  this,  manifestly,  is  no  more  than  a  judi- 
cial fiction.  Prior  to  a  legal  determination  of  their  respec- 
tive rights  and  duties  the  parties  to  a  contract  of  service 
can  have  had  no  understanding  as  to  responsibility  for  trade 
hazards.  The  servant's  assumption  of  such  hazards  is  im- 
plied by  law  from  the  relationship  of  master  and  servant,141 
without  reference  to  any  consent  of  the  parties  thereto,  and 
is  in  no  proper  sense  contractual.142  Nor  does  the  fiction  of 
an  implied  contract  afford  any  independent  support  to  the 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  23 

juridieial  doctrine  ostensibly  founded  thereon;  it  would 
have  been  as  easy  for  the  courts  to  sajr,  de  novo,  that  the 
master  "impliedly"  warrants  his  servant's  safety  as  that 
the  servant  "impliedly"  assumes  the  risks  of  his  employ- 
ment. The  whole  train  of  reasoning  as  to  contractual  as- 
sumption "amounts  to  saying  that  the  law  is  that  he  cannot 
recover  because  he  takes  the  risk,  and  he  takes  the  risk  be- 
cause the  law  is  so."  143  Why  the  law  is  so  has  been  con- 
sidered in  an  earlier  section.144 

Since  the  ordinary  risks  of  an  employment  are  assumed 
by  the  servant  as  a  matter  of  law  (and  as  to  them  the  master 
is  relieved  of  all  responsibility),  the  determination  of  what 
risks  are  to  be  deemed  ordinary  becomes  a  matter  of  great 
importance.  The  question  may  be  approached  from  either 
of  two  directions:  the  care  required  of  the  master,  or  the 
knowledge  imputed  to  the  servant. 

On  the  one  hand,  ordinary  risks  are  denned  as  all  such 
danger  and  exposure  to  injury  as  are  naturally  incident  to 
or  connected  with  the  service  after  the  master  has  fulfilled 
his  duty  to  take  reasonable  care  for  the  safety  of  his  em- 
ployees.145 But  this  statement,  while  satisfactory  as  re- 
gards the  "inherent  risks"  of  the  business,  does  not  fully 
cover  the  "ordinary  risks"  assumed  by  employees. 

Approached  from  the  standpoint  of  the  servant's  knowl- 
edge, and  seen  in  the  light  of  the  common  law  principle  that 
everyone  takes  on  himself  the  risk  of  any  danger  which  he 
voluntarily  encounters,146  ordinary  risks  include  all  those 
which  the  servant,  as  a  reasonably  prudent  and  careful  man, 
should  expect  to  encounter  in  the  course  of  his  employ- 
ment.147 The  servant  thus  assumes,  not  only  all  risks  inci- 
dent to  the  business  when  conducted  in  a  reasonably  careful 
manner,148  but  also  all  risks  due  to  conditions  which  may  be 
ascertained  by  the  exercise  of  ordinary  diligence  at  the  time 
of  entering  the  employment.149  All  open  and  obvious  dan- 
gers are,  accordingly,  to  be  considered  as  risks  incident  to 


24  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  employment,150  although  such  dangers  result  from  the 
defective  character  of  the  instrumentalities  used,151  or  from 
the  negligent  conditions,  whether  permanent 152  or  tempo- 
rary,153 under  which  the  business  is  openly  conducted. 

The  ordinary  risks  of  an  employment  always  include  those 
which  inhere  in  the  nature  of  the  business.154  One  who  en- 
gages in  an  extra-hazardous  employment  thus  takes  upon 
himself  the  extra  perils  incident  thereto.155  Thus,  one  em- 
ployed to  make  a  dangerous  place  safe  can  not  recover  for 
injuries  incurred  by  reason  of  the  very  danger  which  he 
undertakes  to  remove,  since  that  is  a  danger  incident  to  his 
employment.156  So,  too,  a  servant  assumes  any  risk  of  in- 
jury created  by  the  progress  of  the  work  in  which  he  is 
engaged.157  If,  for  example,  he  is  employed  to  demolish  a 
building,  the  risk  of  injury  from  the  collapse  of  the  walls  or 
the  falling  of  overhanging  material  is  his  own.158  In  all 
these  cases,  however,  the  servant  assumes  only  those  risks 
which  are  naturally  incident  to  the  employment,  while  the 
master's  duty  not  to  expose  him  to  any  injury  which  may 
reasonably  be  anticipated  and  guarded  against  remains  un- 
impaired.159 

Knowledge  and  appreciation  of  danger  are  essential  ele- 
ments in  the  assumption  of  risk.190  But  knowledge  and  ap- 
preciation of  the  ordinary  risks  of  an  employment  may  be 
presumed  from  the  fact  of  undertaking  the  service ;  for  one 
who  enters  an  employment  "impliedly  represents"  that  he 
has  the  experience  to  perform  properly  the  duties  of  his 
position  and  that  he  understands  the  usual  dangers  attend- 
ing the  employment  in  which  he  engages.161  The  age  and 
experience  of  an  employee  are,  however,  to  be  considered  in 
determining  whether  he  comprehended  and  so  assumed  a 
particular  risk.162 

The  assumption  of  ordinary  risks  is  not  a  defense  of  the 
master  and  need  not  be  pleaded  by  him :  the  issue  as  to  such 
risks  is  sufficiently  raised  by  a  general  denial  of  negli- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  25 

gence.163  Indeed,  as  has  already  been  pointed  out,  an  aver- 
ment that  an  injury  was  due  to  an  ordinary  risk  of  the  busi- 
ness amounts  to  a  denial  that  it  was  caused  by  the  employ- 
er's negligence.  Still,  the  defendant  in  an  employers'  lia- 
bility suit  will  ordinarily  seek  to  show,  by  way  of  rebuttal, 
that  the  injury  complained  of  was  attributable  to  one  of 
those  ordinary  risks  for  which  the  employer  is  not  liable. 

THE  FELLOW-SERVANT  RULE 

The  doctrines  already  discussed  hold  the  employer  to 
exercise  reasonable  care  for  the  safety  of  his  employees  and 
exempt  him  from  responsibility  for  inherent  occupational 
hazards.  So  much  was  settled  in  accordance  with  general 
common  law  principles  and  has  never  occasioned  serious  di- 
vision among  the  courts.  A  more  difficult  question  was 
raised  by  those  injuries,  very  numerous  in  every  large  in- 
dustrial establishment,  which  are  attributable  to  error  of 
judgment,  forgetfulness,  or  want  of  skill,  care,  or  attention 
on  the  part  of  co-employees. 

On  the  one  hand,  the  courts  were  confronted  with  the  very 
ancient 164  and  thoroughly  established  doctrine  that  a  mas- 
ter is  answerable  to  third  parties  for  injuries  negligently, 
or  even  wilfully,  inflicted  by  his  servants,  acting  within  the 
scope  of  their  employment 165  —  notwithstanding  the  master 
may  have  been  free  from  fault,  both  in  the  selection  of  his 
agents  and  in  his  instructions  to  them.160  This  rule  was  con- 
ceded, even  seventy  years  ago,  to  rest  on  sufficient  grounds 
of  public  policy,167  and  it  has  latterly  found  fresh  justifica- 
tion in  the  growth  of  corporations  and  other  large  employers 
who,  but  for  the  doctrine  of  respondeat  superior,  would  es- 
cape all  responsibility  for  injuries  to  the  persons  or  prop- 
erty of  others.168  If,  then,  the  general  rules  of  law  were  to 
be  followed,  the  master  would  be  liable  for  the  torts  of  his 
servant  even  when  the  complainant  was  a  co-employee  of 
the  actual  wrong-doer. 


26  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

On  the  other  hand,  the  doctrine  of  respondeat  superior 
was  felt  to  be  a  harsh  one,  even  in  its  application  to  injuries 
suffered  by  strangers.109  To  extend  the  rule  to  cases  where 
employees  were  the  sufferers  would,  it  was  believed,  im- 
pose an  intolerable  burden  upon  industrial  enterprise.170 
Accordingly,  when  the  courts  were  called  upon,  some  sev- 
enty-five years  ago,  to  apply  the  doctrine  of  respondeat  su- 
perior to  an  injury  sustained  by  a  workman  through  the 
negligence  of  a  co-employee,  they  "boldly  invented  an  ex- 
ception to  the  general  rule  of  masters'  liability,  by  which 
servants  were  deprived  of  its  protection."  m 

Such  an  exception  appears  to  have  been  first  suggested  in 
Priestley  vs.  Fowler,  decided  by  the  English  Exchequer 
Court  in  1837.  A  butcher  driver's  helper,  who  had  been  in- 
jured by  the  breaking  down  of  the  butcher's  van,  whereon 
he  was  riding,  brought  suit  against  the  butcher  on  the 
grounds  (1)  that  the  van  was  insufficient  for  its  purpose  — 
in  modern  legal  parlance  was  "an  unsafe  place  to  work"  — 
and  (2)  that  it  had  been  negligently  overloaded  by  the 
driver.  Chief  Baron  Abinger,  delivering  the  opinion  of  the 
Court,  held  that  the  plaintiff  could  not  recover.  His  lord- 
ship alleged  three  grounds  for  this  decision.  (1)  If  recovery 
were  allowed  in  this  case  the  master's  liability  would  be 
found  to  extend  very  far.  "The  footman  ....  may 
have  an  action  against  his  master  for  a  defect  in  the  car- 
riage, owing  to  the  negligence  of  the  coach-maker,  or  for  a 
defect  in  the  harness  arising  from  the  negligence  of  the  har- 
ness-maker, or  for  drunkenness,  neglect,  or  want  of  skill  in 
the  coachman.  .  .  .  The  master,  for  example,  would  be 
liable  to  the  servant  for  the  negligence  of  the  chambermaid, 
for  putting  him  into  a  damp  bed ;  for  that  of  the  upholsterer, 
for  sending  in  a  crazy  bedstead  ....  for  the  negli- 
gence of  the  cook,  in  not  properly  cleaning  the  copper  ves- 
sels used  in  the  kitchen ;  of  the  butcher  in  supplying  the  fam- 
ily with  meat  of  a  quality  injurious  to  the  health;  of  the 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  27 

builder,  for  a  defect  in  the  foundation  of  the  house,  whereby 
it  fell,  and  injured  both  the  master  and  the  servant  by  the 
ruins.''  (2)  "The  servant  is  not  bound  to  risk  his  safety 
in  the  service  of  his  master,  and  may,  if  he  thinks  fit,  decline 
any  service  in  which  he  reasonably  apprehends  injury  to 
himself.  .  .  .  The  plaintiff  must  have  known  as  well  as 
his  master,  and  probably  better,  whether  the  van  was  suffi- 
cient, whether  it  was  overloaded,  and  whether  it  was  likely 
to  carry  him  safely. "  (3)  "To  allow  this  sort  of  action  to 
prevail  would  be  an  encouragement  to  the  servant  to  omit 
that  diligence  and  caution  which  he  is  in  duty  bound  to  ex- 
ercise on  the  behalf  of  his  master,  to  protect  him  against  the 
misconduct  or  negligence  of  others  who  serve  him,  and  which 
diligence  and  caution,  while  they  protect  the  master,  are  a 
much  better  security  against  any  injury  the  servant  may 
sustain  by  the  negligence  of  others  engaged  under  the  same 
master,  than  any  recourse  against  his  master  for  damages 
could  possibly  afford."  172 

The  passages  above  set  out  show  that  the  Priestley  case  is 
an  authority  both  for  the  assumption  by  the  servant  of  risks 
due  to  the  master's  negligence  and  for  the  fellow-servant 
rule.  Upon  the  latter  point,  however,  Lord  Abinger's  opin- 
ion contains  no  definitive  pronouncement  and  the  curious 
mingling  of  house-servants,  contractors,  and  independent 
tradesmen,  of  dangers  arising  from  the  negligence  of  co- 
employees  and  from  the  master's  failure  to  provide  safe 
instrumentalities  for  carrying  on  his  business,  indicate  that 
his  lordship  had  not  clearly  thought  out  the  principles  or  the 
implications  of  his  own  decision. 

Four  years  later  than  the  Priestley  case,  though  without 
referring  to  it,  the  South  Carolina  Court  of  Errors  denied 
recovery  to  a  locomotive  fireman  who  had  been  injured  by 
the  negligence  of  the  engineer  under  whom  he  worked.  The 
majority  opinion  was  placed  on  these  grounds:  (1)  that 
the  contract  of  employment  did  not  make  the  railway  com- 


28  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

pany  a  guarantor  to  one  employee  against  the  negligence 
of  other  employees;  (2)  that  the  fireman  was,  or  ought  to 
have  been,  aware  of  the  perils  to  which  his  employment  ex- 
posed him,  including  the  likelihood  that  fellow-employees 
would  be  negligent,  and  must  be  presumed  to  have  under- 
taken to  meet  these  perils;  and  (3)  that  the  plaintiff  was 
paid  for  his  labor  and  for  the  dangers  to  which  he  was 
exposed.173 

Neither  of  the  foregoing  decisions  was  very  broad  in 
scope.  In  the  Priestley  case  the  master  was  a  small  em- 
ployer engaged  in  a  hand  trade  and  the  plaintiff  was  closely 
associated,  in  the  discharge  of  his  duties,  with  the  employee 
whose  negligence  occasioned  his  injury.  In  the  South  Caro- 
lina case,  also,  the  injured  and  the  culpable  employee  were 
upon  the  same  engine,  and  it  could  be  colorably  argued  that 
the  former  had  chosen  to  work  with  this  particular  associate 
after  having  an  opportunity  to  observe  his  habits. 

It  remained  for  Chief  Justice  Shaw,  of  the  Massachusetts 
Supreme  Judicial  Court,  to  give  the  fellow-servant  rule 
definitive  formulation  and  sweeping  applicability.  This 
result  was  accomplished  in  the  famous  case  of  Farwell  vs. 
Boston  and  Worcester  Railroad  Corporation  (4  Metcalf  49), 
decided  in  1842.  An  engineer  had  lost  a  leg  because  a 
switchman  had  neglected  to  change  a  switch.  The  switch- 
man had  been  long  in  the  company's  employ  and  was  re- 
puted ordinarily  careful,  so  that  the  corporation  was  not  at 
fault  in  retaining  him.  On  the  other  hand,  the  engineer  had 
no  control  over  the  switchman's  actions  and  no  opportunity 
to  know  of,  or  to  guard  against,  his  carelessness.  These 
facts  squarely  presented  the  question,  is  a  master  liable  to 
one  of  his  employees  for  an  injury  which  was  caused  by  the 
negligence  of  another  employee  and  which  neither  the  mas- 
ter nor  the  injured  workman  could  have  prevented  by  the 
exercise  of  ordinary  care?  Chief  Justice  Shaw,  in  a  lumi- 
nous decision,  answered  this  question  in  the  negative  and 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  29 

fortified  his  opinion  with  a  chain  of  reasoning  that  was  ac- 
cepted as  conclusive  by  his  contemporaries  of  the  bench  and 
bar.  The  validity  of  the  learned  judge's  arguments  will  be 
considered  at  a  later  point  in  the  present  exposition  (See 
below,  p.  34). 

The  doctrine  of  the  Farwell  case  was  quickly  accepted  in 
other  common  law  jurisdictions,174  and  within  twenty  years 
was  as  well  established  as  the  rule  of  respondeat  superior 
to  which  it  is  an  exception.  The  question  was  thus  fore- 
closed when,  in  1860,  the  earliest,  case  presenting  it  reached 
the  Supreme  Court  of  Iowa.175  The  fellow-servant  rule,  ac- 
cordingly, was  imported  bodily  into  the  law  of  this  State. 
None  the  less,  the  determination  of  the  precise  limits  of  the 
rule  and  its  application  to  particular  cases  have  given  rise 
to  a  huge  volume  of  litigation  continuing  to  the  present  day. 

The  fellow-servant  rule,  or  the  doctrine  of  co-employment 
or  co-service,  as  it  is  variously  termed,  has  been  judicially 
stated  thus:  ''Where  different  persons  are  employed  by 
the  same  principal  in  a  common  enterprise,  no  action  can  be 
brought  by  them  against  their  employer  on  account  of  in- 
juries sustained  by  one  employee  through  the  negligence  of 
another."  17G  This  language,  and  that  of  the  early  cases  gen- 
erally, is  broad  enough  to  include  all  persons  employed  by 
the  same  master  in  the  prosecution  of  the  same  general  bus- 
iness. The  British  courts,  at  least,  did  not  shrink  from  this 
very  broad,  but  strictly  logical,  interpretation.177  So  inter- 
preted, the  doctrine  exempts  a  corporation,  which  necessa- 
rily acts  only  through  agents,  from  all  liability  to  its  em- 
ployees —  except  perhaps  for  negligence  in  selecting  its 
agents  or  in  retaining  them  with  notice  of  their  carelessness 
or  incompetence.  American  courts,  however,  commonly 
have  construed  the  doctrine  more  narrowly  and  have  in- 
vented several  exceptions  to  the  great  exception  whereby  its 
harshness  is  somewhat  mitigated.  Thus  have  grown  up  the 
doctrines  of  " non-delegable  duties",  "vice-principalship", 


30  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

and  "department  of  service".  Of  these  qualifying  doctrines 
only  the  first  mentioned  is  well  established  in  Iowa,  though 
the  others  have  occasionally  been  recognized. 

Non-Delegable  Duties :  —  The  most  important  qualifica- 
tion of  the  fellow-servant  rule  is  the  doctrine  that  the  master 
can  not  so  delegate  certain  of  his  duties  as  to  escape  liability 
for  the  non-performance  or  mal-perf ormance  of  them.178 
Thus  the  duties  to  furnish  a  safe  place  to  work,179  to  provide 
safe  tools  and  appliances,180  to  inspect  instrumentalities  and 
place  of  work,181  to  hire  competent  servants,182  to  warn  serv- 
ants of  latent  dangers,183  to  instruct  them  in  the  perform- 
ance of  new  duties,184  and  to  exercise  proper  control  and 
supervision  over  the  work 185  are  non-delegable.  Nothing 
short  of  performance  can  discharge  these  duties : 186  it  is  no 
defense  that  the  master  may  have  entrusted  them  to  a  relia- 
ble agent  or  contractor.187 

Vice-principalship :  —  A  second  exception  to  the  rule  that 
a  master  is  not  liable  to  one  servant  for  the  negligence  of 
another  arises  where  the  servant  who  committed  the  fault 
stands  in  loco  magistris,  or  is  a  vice-principal.  This  ex- 
ception was  referred  to  in  the  first  fellow-servant  case  in 
Iowa  as  being  already  recognized  by  the  courts  of  Ohio.188 
It  was  applied  by  the  Supreme  Court  of  Iowa  as  early  as 
1866  189  and  has  long  been  the  law  of  this  State.  It  is  to  be 
noted,  however,  in  connection  with  this  statement,  that  the 
term  "vice-principal"  is  used  in  a  two-fold  sense.  A  serv- 
ant may  be  in  loco  magistris  by  virtue  of  a  rank  or  author- 
ity which  makes  him  the  general  representative  of  the  mas- 
ter, or  by  reason  of  discharging,  in  the  particular  instance, 
a  masterial  duty.190  In  the  latter  sense  the  doctrine  of  vice- 
principalship  is  hardly,  if  at  all,  distinguishable  from  that 
of  non-delegable  duties,  and  it  is  in  this  sense  only  that  the 
doctrine  is  clearly  recognized  in  Iowa. 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  31 

There  are  some  Iowa  cases  which  appear  to  make  the 
question  of  vice-principalship  turn  upon  the  control  exer- 
cised by  the  employee  whose  status  is  in  dispute.191  Thus  a 
manager  who  has  full  direction  of  the  business,  or  of  a  par- 
ticular department  or  undertaking,  is  a  vice-principal  as  to 
acts  within  the  scope  of  his  authority.192  In  a  number  of 
cases  the  authority  to  hire  and  discharge  is  made  the  test 
of  vice-principalship  and  it  is  said  that  an  employee  who 
possesses  this  authority  is  not  a  fellow-servant  but  a  vice- 
principal.193  But  most,  if  not  all  of  these  cases,  can  be 
reconciled  with  orders  which  hold  that  "it  is  not  the  rank 
or  grade  of  employment  which  determines  the  character  of 
the  service,  but  the  nature  of  the  duty  to  be  performed  which 
gives  color  to  the  employee's  act."  19t  By  this  second  test, 
an  employee  who  is  entrusted  with  the  discharge  of  a  per- 
sonal, non-delegable  duty  of  the  master  is,  as  to  such  service, 
a  vice-principal,  and  his  negligence  is  the  master's.195  But 
a  servant,  whatever  his  rank  or  grade,  who  undertakes  the 
work  of  an  ordinary  employee  is,  as  to  such  service,  a  co- 
servant  with  others  engaged  in  the  same  work.196  This  doc- 
trine of  dual  capacity,  whereby  the  same  person  may  be  a 
vice-principal  as  to  some  acts  and  a  co-employee  as  to  others, 
may  now  be  considered  the  settled  law  of  Iowa.197 

Under  the  doctrine  of  dual  capacity  the  fact  that  an 
employee  has  authority  to  direct  others  at  their  work  does 
not  make  him  a  vice-principal.198  Hence  a  mere  foreman  — 
that  is,  a  laborer  with  power  to  superintend  the  labor  of 
those  working  with  him  —  is  a  co-employee  so  far  as  his  own 
labor  is  concerned.199  Accordingly,  liability  for  negligence 
in  the  discharge  of  non-masterial  duties  has  been  denied 
when  the  delinquents  were  the  following :  a  foreman  of  car- 
repairers,200  a  foreman  superintending  the  construction  of 
a  house  for  a  contractor,201  and  a  machinist  who  occasionally 
called  other  employees  to  his  assistance.202  On  the  other 
hand,  recovery  was  allowed  for  the  negligence  of  the  follow- 


32  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ing  persons  in  their  supervisory  capacity:  a  section  fore- 
man,203 a  mine  boss,204  a  boss  driver  in  a  mine,205  a  railway 
yard  foreman,206  a  locomotive  engineer,207  and  a  brakeman 
temporarily  in  charge  of  switching  operations.208  A  super- 
intendent, or  general  foreman,  is  the  proper  person  to  re- 
ceive complaints  of  dangerous  conditions  and  to  remedy  the 
same ;  in  the  exercise  of  such  functions  he  is  a  vice-princi- 
pal.209 So,  also,  a  master  is  bound  by  the  negligent  command 
of  a  servant  or  agent  whom  other  employees  are  required  to 
obey,210  and  such  a  command  relieves  the  servant  who  obeys 
it  of  assumption  of  risk  and  of  contributory  negligence  to 
the  same  extent  as  would  a  command  of  the  master.211  ( See 
below,  p.  63.)  In  this  view,  the  power  to  hire  and  discharge 
is  significant  chiefly  as  showing  the  authority  of  the  superior 
servant  in  question  to  enforce  compliance  with  his  com- 
mands.212 

Department  of  Service :  —  Expressions  are  used  in  cer- 
tain Iowa  decisions  which  seem  to  approve  the  doctrine  that 
only  persons  associated  in  the  same  department  of  work  are 
co-employees.  Thus,  it  has  been  held  that  a  bridge-builder 
is  not  a  co-employee  of  a  train  crew  upon  the  same  railway 
line,213  that  a  brakeman  is  not  a  fellow-servant  of  a  car  in- 
spector,214 and  that  an  inspector  of  machinery  is  not  engaged 
in  the  same  service  with  an  operative.215  None  of  these 
cases,  however,  really  turns  on  the  departmental  doctrine. 
Indeed,  the  Supreme  Court  has  explicitly  held  that  the  fact 
that  two  servants  are  engaged  in  different  branches  of  the 
common  service  can  make  no  difference  in  their  rights  as 
against  their  employer,  so  long  as  both  are  employed  in  the 
same  general  business  under  one  master.216  The  test  of  com- 
mon employment  in  this  State  appears  to  be  whether  or  not 
the  negligence  of  the  delinquent  servant  was  a  risk  (im- 
pliedly) contemplated  by  the  injured  servant  in  entering 
and  remaining  in  his  master's  service.     By  this  test  the 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  33 

following  employees  have  been  held  to  be  co-servants:  a 
machinist  engaged  in  installing  a  counter-shaft  and  the 
operator  of  a  bolt  machine  notwithstanding  that  these  two 
were  under  the  direction  of  different  foremen,217  a  track 
inspector  and  a  locomotive  engineer,218  a  sweeper  and  other 
employees  in  a  round  house,219  a  coal  miner  and  road  men 
employed  in  the  same  mine,220  and  a  railway  detective  and 
the  members  of  a  train  crew.221  Probably  all  the  cases  which 
seem  to  imply  the  departmental  doctrine  can  be  brought 
under  either  the  doctrine  of  non-delegable  duties  or  the  rule 
that  a  servant  does  not  assume  a  risk  of  which  he  has  no 
notice  and  which  could  not  reasonably  have  been  anticipated 
at  the  time  of  entering  his  master's  service. 

Concurrent  Negligence  of  Master  and  Fellow-Servant :  — 
Where  negligence  on  the  part  of  the  master  is  the  proximate 
cause  of  an  injury  to  an  employee,  the  fact  that  the  wrongful 
act  of  another  employee  cooperated  therewith  to  produce 
the  injury,  will  not  relieve  the  master  of  liability.222  In 
other  words,  while  the  contributory  negligence  of  the  in- 
jured employee  is  a  bar  to  recovery,  that  of  a  fellow-servant 
is  not.  This  rule  is  but  a  special  application  of  the  general 
principle  that  where  a  wrongful  act  concurs  with  some  other 
cause  and  both  operate  proximately  in  producing  an  injury, 
the  wrong-doer  will  be  liable,  whether  or  not  the  other  cause 
is  one  for  which  he  is  responsible.223 

Criticism  of  the  Fellow-Servant  Rule  :  —  The  alleged  rea- 
sons for  the  fellow-servant  rule  may  be  reduced  to  four : 224 
(1)  that  the  employee  has  the  means  of  knowing  and  of 
guarding  against  the  negligence  of  co-emploj^ees ; 225  (2)  that 
the  risk  of  injury  by  the  negligence  of  co-employees  is  among 
those  ''ordinary  risks"  of  his  employment  which  are  "im- 
pliedly assumed"  by  the  servant  in  his  contract  of  ser- 
vice; 226  (3)  that  the  rule  makes  employees  watchful  of  each 


34  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

other's  conduct,  and  so  is  a  better  security  against  careless- 
ness or  incompetence  than  any  liability  of  the  master  would 
be; 227  and  (4)  that  if  employees  were  allowed  to  maintain 
actions  for  injuries  caused  by  the  negligence  of  co-em- 
ployees, employers  would  be  heavily  burdened  and  invest- 
ment of  capital  in  industrial  enterprises  would  be  curtailed 
to  the  detriment  of  the  public.228 

None  of  these  alleged  grounds  will  bear  close  scrutiny.229 
The  supposition  that  employees  of  the  same  master  are 
necessarily  intimate  associates,  Avell  acquainted  with  each 
other's  personal  habits  and  constant  observers  of  each 
other's  conduct,  might  have  possessed  some  plausibility  if 
confined  to  the  servants  of  a  moderate-sized  household,230  or 
even  to  the  fellow-craftsmen  of  a  petty  shop.  But,  with  ex- 
quisite irony,  the  argument  drawn  from  domestic  industry 
was  applied  without  mitigation  to  railway  corporations, 
with  their  tens  of  thousands  of  employees  scattered  over 
half  a  continent.  "Workingmen  who  had  never  heard  of 
one  another,  nor  had  the  faintest  relation  with  one  another, 
were  held  to  be  in  common  employment,  and  if  one  was  in- 
jured by  the  negligence  of  the  other  there  was  no  title  to 
compensation. ' ' 231  The  very  case  which  has  become  the 
chief  fountain  of  fellow-servant  wisdom  denied  indemnity 
to  a  locomotive  engineer  injured  by  the  negligence  of  a 
switchman.232  The  earliest  Iowa  decision  was  that  a  track 
inspector  is  a  fellow-servant  of  a  locomotive  engineer.233 

As  was  pointed  out  in  an  earlier  section  (see  above,  p. 
22),  the  "implied  contract"  argument  simply  begs  the  ques- 
tion. Chief  Justice  Shaw's  dictum,  "To  say  that  the  master 
shall  be  responsible  because  the  damage  is  caused  by  his 
agents  is  assuming  the  very  point  which  remains  to  be 
proved",234  is  at  least  as  convincing  when  reversed.  To  say 
that  the  master  shall  not  be  responsible  because  the  damage 
was  caused  to  one  of  his  agents  is  assuming  the  very  point 
which  remains  to  be  proved.235    The  argument  that  the  negli- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  35 

gence  of  co-employees  is  an  ordinary  occupational  hazard 
is  equally  inconclusive.  No  doubt,  one  who  engages  in  a 
service  in  which  numerous  others  are  employed  may  reason- 
ably anticipate  that  his  associates  will  at  times  be  guilty  of 
negligent  acts  or  omissions.  But  so  might  he  equally  ex- 
pect that  his  master  will  sometimes  fail  of  due  care  and 
caution.  Want  of  "ordinary  care"  —  as  that  term  is  de- 
fined by  the  courts  —  is  a  very  common  failing  of  mankind. 
Indeed,  the  whole  train  of  reasoning  which  makes  the  negli- 
gence of  fellow  workmen  an  ordinary  hazard  of  the  employ- 
ment may  be  carried  over,  with  scarcely  a  change  of  phrase, 
to  the  negligence  of  the  employer.  To  take  a  single  instance, 
the  railway  brakeman  has  as  much  reason  to  anticipate  that 
couplings  will  be  out  of  repair  as  that  engineers  will  make 
cross-overs  at  high  speed.  Both  contingencies  are  ordinary 
perils  of  the  employment  in  the  sense  of  being  within  the 
range  of  every  day  experience  and  so  of  being  such  as  "a 
reasonably  prudent  man"  would  expect  to  encounter  in  the 
course  of  his  service.  The  brakeman  can  guard  against  the 
one  source  of  danger  as  well  as  the  other  —  being  powerless 
to  guard  against  either.  The  rate  of  compensation  could,  in 
legal  presumption,  provide  for  the  one  risk  as  well  as  the 
other  —  in  point  of  fact,  it  provides  for  neither.  In  strict 
logic,  then,  the  servant  might  be  held  to  contract  with  refer- 
ence to  the  probable  negligence  of  his  master  as  well  as  with 
reference  to  the  probable  negligence  of  his  co-employees. 
Evidently,  the  servant's  "implied  contract"  to  assume  or- 
dinary risks  affords  no  independent  ground  for  exempting 
the  master  from  liability  for  the  negligence  of  his  em- 
ployees, while  leaving  him  liable  for  his  own  negligence. 
At  best,  the  argument  under  consideration  merely  recites 
the  rule  as  a  justification  for  itself. 

The  contention  that  the  fellow-servant  rule  promotes  the 
safety  of  workmen  resembles  nothing  so  much  as  the  ingen- 
ious theory  once  propounded  by  Chief  Justice  Ruflfin  of 


36  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

North  Carolina,  that  the  law  permits  a  master  to  flog  his 
slaves  ''out  of  humane  regard  to  the  best  interests  of  the 
slaves  themselves."  236  If  the  fear  of  death  or  of  mutilation 
does  not  avail  to  make  men  regardful  of  their  own  safety, 
pecuniary  incentives  are  little  likely  to  affect  such  a  result. 
The  argument  overlooks,  as  well,  the  obvious  considerations 
on  which  the  rule  of  respondeat  superior  is  grounded:  that 
it  is  the  employer  and  not  the  co-employee  who  effectually 
controls  and  directs  the  acts  of  employees  and  who  has 
power  to  penalize  carelessness  or  incompetence  by  dismis- 
sal from  the  service.237 

The  argument  ab  inconvenienti  need  hardly  be  taken 
seriously.  Capital  continues  to  be  invested,  and  railways, 
mines,  and  mills  continue  to  operate  in  those  States  and 
countries  that  know  not  the  fellow-servant  rule.  No  doubt 
employers  in  these  jurisdictions  are  somewhat  inconven- 
ienced by  their  greater  liability  for  work  accidents.  But, 
then,  it  is  no  small  inconvenience  to  the  trainman  in  a  com- 
mon law  jurisdiction  that  he  can  have  no  indemnity  for  an 
injury  caused  by  the  carelessness  of  a  section  hand  whom 
he  never  saw  and  over  whose  actions  he  had  not  the  smallest 
control.238 

The  real  foundation  of  the  fellow-servant  rule  is  to  be 
sought  not  in  the  specious  reasoning  by  which  it  is  bolstered 
up,  but  in  the  conviction  of  judges  that  master's  liability 
should  be  confined  to  the  narrowest  possible  limits.  And 
most  of  the  criticisms  which  have  in  recent  years  been  lev- 
eled against  the  rule  by  lay  and  learned  alike  spring  from  a 
shifting  of  social  values  whereby  the  interests  of  capital 
have  come  to  hold  a  lower,  and  human  life  and  happiness  a 
higher,  place  in  men's  esteem.239 

Statutory  Modification  of  the  Fellow-Servant  Rule :  — 
A  radical  innovation  upon  well  settled  legal  principles, 
which  has  such  slight  foundations  in  reason  or  justice  240 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  37 

and  which  works  such  hardship  upon  a  very  numerous  and 
necessitous  class,  has,  of  course,  not  passed  unchallenged  by 
statesmen  or  unnoticed  by  legislatures.  The  character  of 
the  fellow-servant  rule  as  a  piece  of  judicial  legislation  has 
long  been  recognized.  Said  Mr.  Birrell,  late  Secretary  for 
Ireland,  speaking  in  the  House  of  Commons  in  1897 :  "The 
doctrine  [of  common  employment]  was  only  invented  in 
1837.  Lord  Abinger  planted  it ;  Baron  Alderson  watered  it, 
and  the  devil  gave  it  increase."  241  The  British  Home  Of- 
fice reported  to  the  Royal  Commission  on  Labour  in  1894  as 
follows : 

The  doctrine  is  an  exception  to  the  general  rule ;  is  modern  judge- 
made  law;  implies  a  contract  founded  on  a  legal  fiction  not  in 
accordance  with  fact;  has  been  pushed  to  extreme  length  by  the 
judges'  forcing  and  straining  the  meaning  of  the  term  'common 
employment'  and  in  practice  leads  to  gross  anomalies  and  injus- 
tice. .  .  .  The  law  ....  is  an  unfair  law,  operating 
oppressively  against  workmen  as  a  class.242 

Even  the  courts  now  very  generally  recognize  the  injus- 
tice and  unwisdom  of  the  rule  243  and  welcome  the  modifica- 
tion or  abrogation  of  it  by  legislation.244 

The  defense  of  common  employment  has,  accordingly, 
been  swept  away  by  statute  in  Great  Britain  and  has  been 
abrogated  by  a  few  American  legislatures 245  and  more  or 
less  modified  by  nearly  all  of  them.240  Most  of  the  Ameri- 
can fellow-servant  statutes  are  limited  in  application  to  rail- 
ways, partly  because  the  common  law  rule  has  even  less  jus- 
tification in  railway  transportation  than  in  most  other  in- 
dustries, partly  because  accidental  injuries  to  railway 
workers  are  so  shockingly  numerous,  but  most  of  all,  per- 
haps, because  legislators  are  less  tender  of  railway  than  of 
other  industrial  interests.  Railways  are  notoriously  un- 
popular with  farmers  and  small  business  men,  and  a  law 
adversely  affecting  railway  investors  directly  touches  but  a 


280842 


38  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

small  number  of  voters.  A  general  fellow-servant  statute, 
on  the  contrary,  would  arouse  wide-spread  antagonism,  and 
is  not  likely  to  be  enacted  except  where  the  ' '  labor  vote ' '  is 
a  decisive  factor  in  politics. 

The  Iowa  Railway  Liability  Act:  —  The  fellow-servant 
statute  of  Iowa,  as  of  most  American  Common wealt] is,  is 
confined  to  railways,  and,  indeed,  by  judicial  interpreta- 
tion to  certain  railway  hazards.  The  statute  has  a  history 
of  half  a  century,  having  been  first  enacted  in  1862,  only  two 
years  after  the  doctrine  of  co-service  was  adopted  by  our 
Supreme  Court.    The  first  act  was  as  follows : 

Every  rail-road  company  shall  be  liable  for  all  damages  sus- 
tained by  any  person,  including  employees  of  the  company,  in  con- 
sequence of  any  neglect  of  the  agents  or  by  any  mismanagement  of 
the  engineers  or  other  employees  of  the  corporation  to  any  person 
sustaining  such  damage.247 

The  words  "all  contracts  to  the  contrary  notwithstand- 
ing" were  added  in  1870.248  In  1872  the  liability  was  extend- 
ed to  the  wilful  wrongs  of  agents  and  employees  when  such 
wrongs  were  in  any  manner  connected  with  the  use  and  oper- 
ation of  the  railway.249  In  the  Code  of  1873  these  three 
acts  were  combined  into  one  section  which  reads : 

Every  corporation  operating  a  railway  shall  be  liable  for  all 
damages  sustained  by  any  person,  including  employes  of  such  cor- 
poration, in  consequence  of  the  neglect  of  agents,  or  by  any  mis- 
management of  the  engineers  or  other  employes  of  the  corporation, 
and  in  consequence  of  the  wilful  wrongs,  whether  of  commission  or 
omission  of  such  agents,  engineers,  or  other  employees,  when  such 
wrongs  are  in  any  manner  connected  with  the  use  and  operation  of 
any  railway,  on  or  about  which  they  shall  be  employed,  and  no  con- 
tract which  restricts  such  liability  shall  be  legal  or  binding.250 

Judicial  construction  of  the  railway  liability  act  began  in 
1866  and  has  continued  to  the  present  day.    It  will  be  con- 


AN  ANALYSIS  OP  EMPLOYERS'  LIABILITY  39 

venient,  however,  to  discuss  the  questions  which  have  arisen 
in  logical  order  as  presented  by  the  statute  rather  than  to 
trace  the  historical  development  of  judicial  interpretation. 

First.  In  Iowa  all  the  duties  and  liabilities  imposed  by 
law  upon  "corporations  owning  or  operating  railways"  ap- 
ply to  every  person,  firm  or  corporation  that  owns  or  oper- 
ates a  railway.251  Accordingly,  the  liability  law  has  been 
held  to  apply  to  a  lessee,252  to  a  receiver,253  and  to  a  railway 
construction  company  which  moves  trains  upon  the  track  in 
furtherance  of  its  work.254  The  statute  does  not  apply  to 
street  railway  companies,255  though  interurban  railways 
were  brought  within  its  provisions  in  1902. 258 

Second.  The  constitutionality  of  the  railway  liability 
law  has  been  repeatedly  attacked  in  the  courts,  but  without 
success.  As  originally  enacted  the  liability  provision  was  a 
section  of  "An  Act  in  relation  to  the  duties  of  Railroad  Com- 
panies." In  the  first  case  which  arose  under  this  statute, 
that  of  McAunich  vs.  Mississippi  and  Missouri  Railroad 
Company  (20  Iowa  338),  decided  in  1866,  it  was  contended 
that  this  title  did  not  cover  provisions  relative  to  the  liabili- 
ties of  railroad  companies  within  the  meaning  of  that  sec- 
tion of  the  State  Constitution  which  requires  that  "Every 
act  shall  embrace  but  one  subject,  and  matters  properly  con- 
nected therewith;  which  subject  shall  be  expressed  in  the 
title."  257  The  Supreme  Court  held  this  objection  to  be  not 
well  taken.  "Every  law",  it  was  said,  "prescribing  duties 
must  have  the  sanction  of  liabilities  resulting  from  a  fail- 
ure to  perform  those  duties,  in  order  to  have  any  practical 
beneficial  effect  or  operation."  25S 

The  burden  of  the  attack  upon  the  constitutionality  of  the 
statute  has  been  that  it  is  class  legislation.  Thus,  it  has 
been  argued  that  the  act  violates  the  State  Constitution  in 
that  it  is  not  uniform  in  operation,  and  in  that  it  grants 
privileges  and  imposes  liabilities  which  are  not  extended 
upon  the  same  terms  to  all  citizens  of  the  State; 259  and  that 


40  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

it  contravenes  the  Fourteenth  Amendment  to  the  Constitu- 
tion of  the  United  States  by  depriving  railway  companies 
of  the  equal  protection  of  the  law. 

The  objection  that  the  statute  is  not  uniform  in  operation 
was  disposed  of  in  the  McAunich  case  above  cited.  The 
Court  said : 

It  [the  statute]  applies  to  all  railroad  corporations  now  in  exist- 
ence, or  which  may  hereafter  exist,  and  is  just  as  general  and  uni- 
form as  it  would  be  if  it  applied  to  all  common  carriers.  .  .  .  Very 
many  laws,  the  constitutionality  of  which  are  [is]  not  doubted,  do 
not  operate  alike  upon  all  citizens  of  the  State.  .  .  .  These 
laws  are  general  and  uniform,  not  because  they  operate  upon  every 
person  in  the  State,  for  they  do  not,  but  because  every  person  who 
is  brought  within  the  relations  and  circumstances  provided  for,  is 
affected  by  the  law.  They  are  general  and  uniform  in  their  oper- 
ation upon  all  persons  in  the  like  situation,  and  the  fact  of  their 
being  general  and  uniform  is  not  affected  by  the  number  of  persons 
within  the  scope  of  their  operation.260 

A  similar  line  of  reasoning  answers  the  contention  that 
the  act  violates  the  constitutions  of  Iowa  and  of  the  United 
States  by  subjecting  railroad  corporations  to  penalties  and 
liabilities  to  which  other  persons  and  corporations  engaged 
in  a  like  business  are  not  subjected.  For,  it  was  said,  the 
business  of  operating  a  railway  is  peculiarly  hazardous,  and 
as  the  statute  extends  to  all  persons  or  corporations  en- 
gaged in  operating  railroads  it  does  not  discriminate  in 
favor  of  or  against  anyone.  It  is  a  pure  question  of  legis- 
lative discretion  whether  like  penalties  and  liabilities  should 
be  applied  to  carriers  by  canal  or  stage  coach,  or  to  persons 
and  corporations  using  steam  in  manufactories.261 

Finally,  the  act  when  rightly  construed  does  not  grant  to 
railway  employees  any  privileges  or  immunities  which  are 
not  open  on  the  same  terms  to  all  persons  in  the  same  situa- 
tion.262 In  reaching  this  conclusion,  however,  the  State  Su- 
preme Court,  held  that  the  act  must  be  so  construed  as  to 


AN  ANALYSIS  OP  EMPLOYERS'  LIABILITY  41 

embrace,  not  all  railway  employees,  but  only  those  engaged 
in  the  hazardous  business  of  operating  railroads.  "When 
thus  limited",  said  the  Court,  "it  is  constitutional ;  when  ex- 
tended further  it  becomes  unconstitutional."  263  The  reas- 
oning was  that  the  statute  if  applied  to  all  persons  in  the 
employ  of  railroad  corporations,  would  secure  privileges 
to  certain  persons  —  section  hands,  for  example  —  which 
are  denied  to  others  engaged  in  equally  perilous  callings. 
The  effect  of  this  interpretation  is  materially  to  narrow  the 
scope  of  the  original  statute,  the  terms  of  which  had  includ- 
ed all  railway  employees. 

Beaten  in  the  highest  State  tribunal  the  railways  carried 
the  "due  process"  and  "equal  protection  of  the  law"  ques- 
tions to  the  Supreme  Court  of  the  United  States,  which 
sustained  the  decision  of  the  Court  below.264  The  Federal 
tribunal  was,  of  course,  powerless  to  widen  the  construction 
of  the  statute  adopted  by  the  State  Court.  It  may  be  doubt- 
ed, however,  in  view  of  subsequent  decisions  of  the  United 
States  Supreme  Court,  whether  so  narrow  a  construction 
was  necessary  to  save  the  statute  from  the  inhibitions  of  the 
Fourteenth  Amendment.  That  Court  has  not  only  upheld 
legislation  abrogating  the  fellow-servant  rule  as  to  railway 
employees  generally,265  but  has  construed  an  Indiana  act, 
apparently  similar  in  scope  to  the  Iowa  statute  of  1862,  so 
as  to  embrace  all  railway  employees.266  A  similarly  broad 
interpretation  of  the  Iowa  statute  would  probably  have  been 
sustained.  Indeed,  the  reasoning  by  which  the  Iowa  Su- 
preme Court  justified  its  narrow  interpretation  of  the  fel- 
low-servant law  was  met  and  refuted  by  the  highest  court 
of  the  land  in  construing  the  Indiana  act  above  referred 
to.267 

The  court  of  last  resort  having  decided  that  the  railway 
liability  act  does  not  apply  to  all  casualties  sustained  in 
railway  service  it  became  important  to  determine  precisely 
what  injuries  fall  within  its  scope.     The  act  of  1862  was  held 


42  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

to  apply  to  servants  employed  for  the  discharge  of  duties 
which  exposed  them  to  the  peculiar  hazards  incident  to  the 
operation  of  railways.  Under  this  rule,  apparently,  an  em- 
ployee would  have  been  entitled  to  recover  for  an  injury 
which  did  not  arise  from  the  peculiar  hazards  of  railway 
operation  so  long  as  his  employment  embraced  those  haz- 
ards.268 

The  act  of  1872  introduced  a  new  element  into  the  railway 
liability  statute  in  the  proviso,  "when  such  wrongs  [of  em- 
ployees] are  in  any  manner  connected  with  the  use  and 
operation  of  any  railway,  on  or  about  which  they  shall  be 
employed".  The  Supreme  Court  has  held  that  the  words 
'  *  such  wrongs ' '  in  this  clause  refer  to  negligent  acts  as  well 
as  wilful  wrongs,  and  that,  consequently,  recovery  under 
the  statute  can  be  had  only  for  injuries  arising  from  "the 
use  and  operation  of  any  railroad".269 

The  phrase,  "use  and  operation  of  a  railway",  is  judicial- 
ly denned  as  referring  only  to  the  "handling  of  railroad  ma- 
chinery moved  upon  railroad  tracks".270  Justice  Beck, 
speaking  for  the  Supreme  Court,  remarked  in  a  leading 
case:  "What  is  the  use  and  operation  of  a  railway?  It  is 
constructed  for  the  sole  purpose  of  the  movement  of  trains. 
That  is  its  sole  use.  What  is  the  operation  of  a  railway1? 
They  can  be  operated  in  no  other  way  than  by  the  movements 
of  trains."  2T1  But  the  word  "trains"  as  here  used  must  be 
understood  to  include  all  railroad  machinery  moved  upon 
railroad  tracks,  as  a  work  train,272  a  steam  shovel  mounted 
upon  a  car  and  operated  by  being  moved  along  the  track,273 
a  single  locomotive,274  or  even  a  hand  car.275  The  rails  on  the 
floor  of  a  machine  shop,  however,  are  not  a  railway  and  the 
movement  of  an  engine  thereon  is  not  the  use  and  operation 
of  a  railway.278 

Under  this  interpretation  it  is  not  the  nature  of  the  em- 
ployment but  the  cause  of  the  injury  which  determines  the 
applicability  of  the  statute.277     There  are,  indeed,  some  de- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  43 

cisions  to  the  effect  that  the  benefits  of  the  statute  accrue 
only  to  such  employees  as  are  engaged,  at  the  time  of  receiv- 
ing the  injury,  in  the  business  of  operating  a  railroad.-'7" 
But  a  majority  of  the  cases  hold  that  any  employee  is  within 
its  protection  while  engaged  in  the  performance  of  a  duty 
which  exposes  him  to  hazards  peculiar  to  the  operation  of  a 
railway.279  The  following  judicial  statement  may  be  taken 
as  an  authoritative  interpretation  of  the  scope  of  the 
statute : 

If,  then,  the  injury  is  received  by  an  employee  whose  work  ex- 
poses him  to  the  hazards  of  moving  trains,  cars,  engines,  or  machin- 
ery on  the  track,  and  is  caused  by  the  negligence  of  a  co-employe 
in  the  actual  movement  thereof,  or  in  any  manner  directly  connected 
therewith,  the  statute  applies,  and  recovery  may  be  had.  Beyond 
this,  the  statute  affords  no  protection.280 

A  few  concrete  cases  in  which  recovery  has  been  allowed 
or  denied  will  serve  further  to  elucidate  the  effect  of  the 
statute. 

First.  All  persons  employed  in  the  actual  operation  of 
trains  are  within  the  statute  as  a  matter  of  course.281  The 
essential  questions  in  cases  where  members  of  train  crews 
were  injured  in  the  course  of  duty  are  whether  the  co-ser- 
vant was  in  fact  negligent  and  whether  the  injured  employee 
was  himself  at  fault.282 

Second.  Persons  employed  upon  a  train,  though  having 
nothing  to  do  with  its  management.  A  laborer  employed 
in  the  working  of  a  ditching  machine  operated  by  moving 
along  the  track  the  train  of  which  it  formed  a  part,  is  a 
member  of  the  train  crew.283  The  same  rule  applies  to  a 
shoveler  upon  a  gravel  train,284  and  to  a  laborer  who  rides 
upon  a  train  and  alights  from  time  to  time  to  clear  the  track 
of  snow.285 

Third.  Employees  working  on  or  about  a  "live"  engine. 
An  employee   engaged  in  coaling  a  "live"  engine,286  in 


44  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

coupling  tanks  together,287  or  in  operating  a  turn  table,288  is 
exposed  to  perils  peculiar  to  the  operation  of  a  railway  and 
can  recover  for  injuries  due  to  the  negligence  of  a  co-em- 
ployee in  the  same  service. 

Fourth.  Employees  at  work  upon  a  car  which  forms  a 
part  of  a  train,  or  is  likely  to  be  moved  by  the  operation  of 
trains.  A  car  inspector  whose  duty  requires  him  to  go  be- 
neath all  cars,289  a  car  repairer  injured  by  a  moving  engine 
when  at  work  in  a  railway  yard,290  a  car  cleaner  at  work  in  a 
standing  car  which  was  moved  by  the  impact  of  a  loco- 
motive,291 and  a  mechanic  injured  while  repairing  one  of  the 
cars  of  a  train,292  were  each  held  to  be  within  the  protection 
of  the  statute. 

Fifth.  Employees  exposed  to  the  peril  of  passing  trains 
while  in  the  performance  of  their  duty  are  within  the  stat- 
ute. This  rule  has  been  applied  to  a  railway  detective 
rightfully  walking  along  the  track,293  to  a  water  carrier  for 
a  bridge  gang,294  and  to  section  men  engaged  in  track  re- 
pairing 295  —  of  course  only  where  the  injury  was  due  to  the 
negligence  of  persons  employed  in  the  operation  of  trains. 

Sixth.  Section  men  riding  upon  a  hand  car.290  On  the 
other  hand,  employees  in  the  following  situations  have  been 
held  not  to  be  engaged  in  the  operation  of  a  railway  so  as 
to  make  the  company  liable  for  the  negligence  of  a  fellow- 
servant  engaged  in  the  same  sort  of  work :  employees  in  a 
railway  machine  shop,297  employees  engaged  in  hoisting  coal 
in  a  railway  coal  house,298  sweepers  in  a  round  house,299  men 
repairing  a  "dead"  engine,300  a  section  hand  repairing  the 
track,301  and  men  loading  a  detached  car.302 

As  to  all  cases  not  embraced  in  the  statute,  the  common 
law  rule  exempting  the  employer  from  liability  to  one  em- 
ployee for  the  negligence  of  another  is  still  in  force.303  Even 
as  to  cases  within  its  terms  the  statute  does  not  change  the 
degree  of  care  due  from  a  master  to  his  servant ; 304  nor  did 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  45 

it,  prior  to  the  act  of  1909,  affect  the  defense  of  contributory 
negligence.305 

Ordinarily  the  character  of  the  servant's  employment, 
the  cause  of  his  injury  and  whether  or  not  thereby  the  em- 
ployee is  brought  within  the  provisions  of  the  statute  are 
questions  of  fact  for  the  jury  and  not  of  law  for  the  court.31" 
But  where  there  is  no  dispute  in  the  evidence  upon  these 
propositions  the  court  may  instruct  the  jury  as  to  whether 
or  not  the  case  comes  within  the  statute.307 

The  clause  in  the  railway  liability  act  reading  "no  con- 
tract which  restricts  such  liability  shall  be  legal  or  binding" 
has  been  attacked  as  an  unconstitutional  interference  with 
"freedom  of  contract".  The  Supreme  Court  of  Iowa  in 
overruling  this  contention  remarked : 

There  is  no  such  thing  as  absolute  liberty  of  contract.  Indeed, 
all  personal  and  property  rights  are  subject  to  proper  legislative 
regulation  and  control.  ...  A  very  great  proportion  of  our 
legislation  is  a  restriction  upon  some  one's  liberty.  Indeed,  the 
liberty  of  which  we  boast  and  are  so  justly  proud  is  liberty  under 
law,  and  not  absolute  license.  It  is  freedom  frequently  restrained 
by  law  for  the  common  good.308 

In  pursuance  of  the  foregoing  decision  an  agreement  en- 
tered into  by  a  railway  employee  at  the  time  of  his  employ- 
ment that  if  he  sustains  any  personal  injury  for  which  he 
makes  a  claim  against  the  company  for  damages,  failure  to 
give  notice  thereof  in  writing  within  thirty  days  after  injury 
is  sustained  shall  be  a  bar  to  action  therefor,  was  held  to  be 
invalid.309  None  the  less  an  effective  device  for  contracting 
out  of  the  statute,  in  spite  of  the  contracting  out  clause,  was 
hit  upon  by  the  Burlington  Railway. 

This  device  took  shape  in  the  Burlington  Voluntary  Re- 
lief Department,  organized  in  1889.  The  employees  who 
became  members  of  this  department  agreed  to  allow  the 
company  to  deduct  a  specified  sum  from  their  monthly  wages 


46  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

for  the  creation  of  a  relief  fund.  The  company  on  its  part 
undertook  to  care  for  the  fund,  to  defray  all  administrative 
expenses,  and  to  guarantee  the  payment  of  the  stipulated 
benefits.  The  essential  feature  of  the  plan,  in  the  present 
connection,  is  the  agreement  on  the  part  of  members  that 
the  acceptance  of  any  benefit  thereunder  for  personal  in- 
juries sustained  in  the  service  of  the  company  should  oper- 
ate as  a  release  of  all  claims  against  the  company  in  re- 
spect of  such  injuries,  and  further  that  the  bringing  of  a 
suit  against  the  company  should  forfeit  all  rights  under  the 
relief  plan.310 

It  was  claimed  by  the  company  that  the  department  was 
wholly  beneficent  in  purpose,  that  membership  therein  was 
purely  voluntary,  that  the  company  bore  about  one-third  of 
the  total  cost  of  relief  thereunder  (including  administrative 
expenses),  and  that  the  scheme  avoided  the  wastes  of  litiga- 
tion, secured  prompt  relief  in  cases  of  sickness  or  injury, 
made  equitable  provision  for  deserving  cases,  and  tended  to 
promote  good  will  between  the  company  and  its  employees. 
The  employees,  on  the  contrary,  asserted  that  membership 
in  the  department  was  practically  compulsory,  at  least  for 
trainmen;  that  the  relief  fund  consisted,  in  larger  part,  of 
deductions  from  wages ;  that  the  acceptance  of  benefits  took 
place  at  the  time  when  the  injured  employee  was  seriously  in 
need  of  aid  and  was  easily  induced  to  waive  his  right  of  ac- 
tion in  return  for  immediate  relief;  and,  finally,  that  the 
provision  which  made  the  acceptance  of  relief  out  of  funds 
contributed  by  the  employees  themselves  a  bar  to  any  action 
founded  on  the  company's  negligence  transferred  to  the 
employees  a  portion  of  that  liability  for  personal  injuries 
which  ought  to  rest  upon  the  company  to  insure  reasonable 
care  for  the  safety  as  well  of  the  travelling  public  as  of  rail- 
way employees.311 

Without  passing  upon  the  merits  of  all  these  respective 
assertions,  it  is  clear  from  the  very  terms  of  membership 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  47 

that  members  of  the  organization  practically  became  their 
own  insurers  against  work  accidents  however  caused.  In 
other  words,  the  Voluntary  Relief  Department  operated  to 
relieve  the  company  of  its  liability  under  both  common  and 
statute  law. 

The  stipulations  above  recited  were  held  by  the  Supreme 
Court  of  Iowa,  in  1895,  not  to  be  a  contract  restricting  the 
liability  of  the  company  in  violation  of  the  acts  of  1870  and 
1873.  The  theory  of  this  decision  is  (1)  that  the  employee 
by  entering  the  relief  department  has  waived  his  right  of 
action  for  a  valuable  consideration  and  (2)  that  the  effect 
of  the  contract  of  membership  is  but  to  put  the  employee  to 
his  election,  after  injury,  between  his  right  of  action  and  his 
rights  as  a  member  of  the  department.312  This  theory  over- 
looks the  possibility  that  both  the  contract  and  the  election 
might  be  involuntary  in  fact,  and  hence  for  a  consideration 
not  deemed  adequate  by  the  employee. 

At  any  rate,  the  Court's  decision  was  felt  to  be,  in  effect, 
a  judicial  repeal  of  a  legislative  enactment.  It  was  believed 
that  under  this  decision  it  would  be  possible  for  every  rail- 
way company  to  defeat  the  purpose  of  the  liability  law  by 
maldng  membership  in  a  relief  association  a  condition  of 
employment.  Accordingly,  the  railway  unions  at  once  began 
agitating  for  a  law  which  should  expressly  invalidate  con- 
tracts such  as  those  used  upon  the  Burlington  system.  The 
views  of  the  railway  workers  were  embodied  in  an  amend- 
ment to  the  railway  liability  statute  which  was  offered  by 
Representative  Temple  at  the  special  legislative  session  of 
1897,313  and  which  has  come  to  be  known  as  the  Temple 
Amendment.  The  proposed  amendment  having  failed  of 
passage  at  the  special  session,314  the  unions  "took  the  ques- 
tion to  the  people"  and  secured  the  endorsement  of  the 
principle  for  which  they  were  contending  by  both  the  Re- 
publican and  Democratic  State  conventions  of  1898. 315  An 
act  embodying  that  principle  was  accordingly  passed  at  the 


48  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

next  session  of  the  General  Assembly  (1898)  with  but  little 
opposition.316  The  Temple  Amendment  as  finally  enacted 
reads : 

Nor  shall  any  contract  of  insurance,  relief,  benefit  or  indemnity 
in  case  of  injury  or  death,  entered  into  prior  to  the  injury,  between 
the  person  so  injured  and  such  corporation,  or  any  other  person  or 
association  acting  for  such  corporation,  nor  shall  the  acceptance  of 
any  such  insurance,  relief,  benefit,  or  indemnity  by  the  person  in- 
jured, his  widow,  heirs,  or  legal  representatives  after  the  injury, 
from  such  corporation,  person  or  association,  constitute  any  bar  or 
defense  to  any  cause  of  action  brought  under  the  provisions  of  this 
section,  but  nothing  contained  herein  shall  be  construed  to  prevent 
or  invalidate  any  settlement  for  damages  between  the  parties  sub- 
sequent to  injuries  received.317 

The  validity  of  the  Temple  Amendment  as  an  exercise  of 
police  power  has  been  fully  upheld  by  the  supreme  courts 
both  of  Iowa  and  of  the  United  States.318  Its  effect  is  to  in- 
validate the  Burlington  Voluntary  Relief  Department  con- 
tracts so  far  as  these  undertake  to  restrict  the  liability  of 
the  railway. 

After  the  passage  of  the  Temple  Amendment,  in  1898,  the 
railway  liability  act  stood  unchanged  until  the  act  of  1909 
modifying  the  common  law  in  respect  to  contributory  negli- 
gence and  assumption  of  risk  —  topics  elsewhere  treated  in 
this  monograph. 

CONTRIBUTORY  NEGLIGENCE 

Proof  that  a  work  injury  was  occasioned  by  the  fault  of 
the  employer  is  of  no  avail  unless  the  plaintiff  can  also  es- 
tablish his  own  freedom  from  contributory  negligence.319 
For  no  one  can,  at  common  law,  hold  another  liable  in  dam- 
ages for  an  injury  to  which  his  own  want  of  ordinary  care 
in  any  degree  proximately  contributed.320  It  matters  not 
that  the  fault  of  the  workman  may  have  been  slight  and  that 
of  the  master  gross  by  comparison:  any  negligence  on  the 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  49 

part  of  the  person  injured,  which  actually  contributed  to 
produce  the  injury  and  without  which  the  accident  would 
not  have  occurred,  will  defeat  recovery.321  But  negligence 
which  was  not  a  proximate  and  efficient  cause  of  the  injury 
complained  of  is  not  to  be  regarded  as  contributory ; 322 
hence  the  injured  party,  though  not  entirely  without  fault, 
may  maintain  an  action  if  he  could  not  have  prevented  the 
injury  by  the  exercise  of  ordinary  care.323 

Lastly,  even  the  contributory  negligence  of  the  person  in- 
jured is  not  a  bar  to  recovery  where  the  other  party  to  the 
accident  became  aware  of  such  negligence  in  time  to  avoid 
the  injury  by  the  use  of  ordinary  care.324  This  doctrine  of 
"the  last  clear  chance",325  like  the  preceding  apparent  ex- 
ception to  the  general  rule  of  contributory  negligence,  ap- 
pears to  be  founded  on  the  theory  of  proximate  cause :  the 
negligent  act  or  omission  of  the  defendant  intervening  be- 
tween the  negligence  of  the  injured  party  and  the  injury  is 
considered  the  sole  proximate  cause  of  the  latter.320 

As  applied  in  employers'  liability  cases  the  doctrine  of 
contributory  negligence  presents  two  aspects.  First,  an  em- 
ployee may  be  guilty  of  contributory  negligence  so  as  to 
preclude  recovery  in  continuing  to  work  under  conditions  of 
such  imminent  hazard  as  a  reasonably  prudent  man  would 
refuse  to  encounter.327  Second,  a  servant  can  not  recover  for 
an  injury  to  which  his  own  want  of  due  care  at  the  time  of 
the  accident  contributed  as  an  efficient  cause.  In  Iowa,  how- 
ever, the  conception  of  contributory  negligence  in  continuing 
at  work  is  merged  with  that  of  assumption  of  risk328  — 
which  will  be  discussed  in  a  subsequent  section.329  It  only 
remains,  therefore,  to  consider  the  question  of  the  servant's 
negligence  at  the  time  of  the  injury. 

The  care  exacted  of  an  employee  is  that  defined  as 
"reasonable"  or  "ordinary",330  though  what  conduct  is 
reasonable  will,  of  course,  depend  upon  the  particular  cir- 
cumstances surrounding  each  case.331    Thus  the  standard  of 


50  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

care  varies  with  the  age  and  experience  of  the  employee : 332 
reasonable  care  on  the  part  of  a  child  or  young  person  is 
only  such  care  and  discretion  as  is  usual  with  persons  of 
similar  age.333  So,  too,  the  need  of  performing  a  duty  in 
haste,334  or  under  conditions  of  imminent  peril  or  neces- 
sity,335 or  the  engrossment  of  the  employee's  attention  by 
the  duties  in  which  he  is  engaged,336  will  excuse  acts  that 
would  be  negligent  if  performed  under  normal  conditions. 

Contributory  negligence  is  not  predicable  unless  the  em- 
ployee was,  or  ought  to  have  been  aware  of  the  conditions 
which  produced  his  injury,337  and  appreciated  the  dangers 
created  by  those  conditions.338  The  employee  has  a  right  to 
rely  on  the  presumption  that  both  his  employer  and  his  co- 
employees  will  exercise  due  care  in  the  discharge  of  their 
respective  duties,  and  is  not  bound  to  take  precautions 
against  their  failure  so  to  do  unless  he  has  notice  thereof.339 
Knowledge  of  a  dangerous  condition  will,  however,  be  im- 
puted to  the  injured  employee  if  he  could  have  discovered 
the  same  by  the  exercise  of  ordinary  care.340  Whether,  in  a 
given  case,  the  employee  can  be  held  to  have  appreciated 
the  dangers  to  which  he  was  exposed  will  depend,  upon  the 
age  and  experience  of  the  employee,341  his  means  of  obser- 
vation,342 and  other  circumstances  existing  at  the  time  of  the 
injury.343 

Contributory  negligence  is  ordinarily  a  mixed  question 
of  law  and  fact,344  but  may  be  conclusively  presumed  as  a 
matter  of  law  whenever  it  is  an  unavoidable  inference  from 
the  undisputed  facts  of  the  case.345  Typical  instances  of 
conduct  which  has  been  held  to  present  such  an  inference 
are :  failure  to  look  for  possible  dangers ; 346  f orgetf ulness  of 
a  permanent  structure,  the  position  of  which  should  have 
been  known ; 347  going  into,  or  remaining  in,  an  unauthorized 
and  dangerous  place ; 348  creating  or  assisting  to  create  the 
conditions  from  which  the  injury  results ; 349  or  going  into  a 


AN  ANALYSIS  OF  EMPLOYEES'  LIABILITY  51 

dangerous  place  without  notifying  persons  from  whose  acts 
danger  may  reasonably  be  anticipated.350 

Violation  of  law  is  negligence  per  se,351  and  where  such 
violation  by  the  injured  party  contributed  to  the  injury  com- 
plained of  he  can  not  recover.  But  if  the  violation  of  law  was 
a  mere  condition,  and  not  the  proximate  cause  of  the  injury, 
it  will  not  defeat  recovery.352 

The  needless  violation  of  a  known  rule  of  the  employer 
intended  for  the  safety  of  his  employees  is  contributory 
negligence,  if  it  is  an  efficient  cause  of  the  injury.353  Of 
course,  a  breach  of  the  rules  will  not  defeat  recovery  when 
it  was  not  the  proximate  cause  of  the  injury,354  nor  when 
the  breach  was  justified  by  the  circumstances.355  Nor  can 
an  employer  escape  responsibility  by  showing  the  violation 
of  a  rule  which  is  habitually  disregarded  with  his  apparent 
acquiescence.358 

It  is  not  necessarily  negligent  to  adopt  the  more  hazard- 
ous of  two  available  courses  of  action.  The  question  usually 
is  one  of  fact,  to  be  determined  according  to  the  circum- 
stances of  the  case,  the  reasons  for  doing  what  was  done, 
and  the  care  used  to  avoid  danger.357  But  to  choose  a  reck- 
less or  needlessly  dangerous  method  of  accomplishing  an 
object  is  negligence  as  a  matter  of  law.358  Thus,  a  brake- 
man  is  not  always  guilty  of  contributory  negligence  in  going 
between  cars  while  in  motion  to  couple  or  uncouple  them.359 
Nor  is  a  servant  necessarily  negligent  in  failing  to  use  a 
safety  appliance  provided  by  the  employer,300  though  it  is 
negligent  to  ignore  such  an  appliance  where  it  can  reason- 
ably be  used.381  Lastly,  the  fact  that  a  particular  act  is 
usual  or  customary  tends  to  rebut  a  presumption  of  negli- 
gence,328 unless  the  custom  is  itself  negligent.363 

Contributory  negligence  is  not  a  defense  of  the  master,  to 
be  established  by  him :  freedom  from  such  negligence  must 
be  pleaded  and  proven  by  the  employee  to  justify  recovery.384 
It  is  not  always  necessary,  however,  to  prove  the  absence 


52  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

of  contributory  negligence  by  direct  and  positive  testi- 
mony.385 The  fact  of  due  care  may  sometimes  be  inferred 
from  the  circumstances  attending  the  injury,360  or  from  the 
instinct  of  self-preservation.367  Thus,  in  case  of  an  injury 
causing  death  it  may  be  presumed,  until  the  contrary  ap- 
pears, that  the  deceased,  prompted  by  his  natural  instinct, 
exercised  such  care  for  his  safety  as  was  required  under  the 
circumstances.368  But  the  presumption  arising  from  the  in- 
stinct of  self-preservation  only  obtains  in  the  absence  of 
direct  evidence  as  to  the  care  exercised  by  the  person  in- 
jured at  the  time  of  the  injury.*69 

Criticism  of  Contributory  Negligence  :  —  The  rule  which 
makes  the  smallest  inadvertence  on  the  part  of  the  injured 
person  a  complete  bar  to  recovery  bears  with  peculiar  hard- 
ship upon  industrial  wage-workers.  The  statisticians  of  the 
Imperial  Insurance  Office  estimate  that  not  less  than  forty 
per  cent  (41.26  per  cent  in  1907)  of  work  accidents  in  the 
German  Empire  are  attributable  to  the  fault  of  the  injured 
workmen,  within  the  common  law  definition  of  contributory 
negligence.370  Such  a  record  convincingly  demonstrates  the 
impossibility  of  incorporating  the  rule  under  discussion  in 
any  adequate  system  of  indemnity  for  industrial  injuries, 
since  its  operation  would  leave  some  two-fifths  of  such  acci- 
dents unindemnified. 

The  doctrine  of  contributory  negligence  not  only  defeats 
recovery  in  a  large  proportion  of  employers'  liability  cases ; 
it  is  substantially  unjust  even  as  a  part  of  an  indemnity  sys- 
tem based  on  fault.  Statistics  of  work  accidents,  of  which 
those  above  quoted  are  fairly  representative,371  contain 
abundant  proof  that  negligence,  in  the  sense  of  occasional 
lapses  of  that  care  and  watchfulness  which  are  the  only  hu- 
man traits  of  the  "reasonably  prudent  man",  is  a  very 
common  failing.  The  prevalent  shortcoming  of  industrial 
workmen  in  this  respect  is  due  partly  to  a  conceptual  juris- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  53 

prudence  which  makes  the  conduct  of  a  hypothetical  "rea- 
sonable man",  rather  than  of  actual  human  beings,  the 
standard  of  due  care;  and  partly  to  conditions  which  inhere 
in  modern  industry. 

The  "reasonable  man"  of  the  common  law  never  relaxes 
his  vigilance  under  the  influence  of  monotony,  fatigue,  or 
habituation  to  danger,  never  permits  his  attention  to  be  di- 
verted, even  for  a  moment,  from  the  perils  which  surround 
him,  never  forgets  a  hazardous  condition  that  he  has  once 
observed,  and  never  ceases  to  be  on  the  alert  for  new  sources 
of  danger.  Evidently,  this  personage,  like  the  "economic 
man"  of  John  Stuart  Mill,  has  no  flesh-and-blood  existence, 
but  is  a  heritage  from  pre-scientific  psychology. 

The  unreasonableness  of  the  "reasonable  man"  standard 
of  care  is  well  exhibited  in  its  application  to  extra-hazardous 
employments.  In  the  nature  of  the  case  such  callings  are 
followed  by  men  of  unusual  daring  —  which  is  to  say,  of  less 
than  usual  regard  for  their  own  safety.  Moreover,  all  ex- 
perience shows  that  long  continued  exposure  to  danger  be- 
gets indifference  thereto.372  Accordingly,  acts  which  would 
be  deemed  reckless  in  less  hazardous  employments  are  but 
incidents  of  the  day's  work  to  a  railway  brakeman  or  a 
structural  iron-worker.  To  the  common  law  jurist  these 
well-known  facts  suggest  only  that  a  special  presumption  of 
negligence  should  lie  against  the  members  of  these  trades.373 
But  this  is  so  only  because  "ordinary  care",  as  defined  by 
the  courts,  is  something  different  from  the  usual  practice  of 
men  under  the  actual  circumstances  to  which  the  test  of  care 
is  to  be  applied.  The  ordinary  man  is  not  "ordinarily  pru- 
dent" in  the  eye  of  the  law,  just  as  no  actual  business  com- 
munity is  fully  "normal"  in  the  view  of  orthodox  econo- 
mists. 

Another  very  large  class  of  so-called  negligent  acts  is 
accounted  for  by  the  mal-adjustment  of  human  nature  to  a 
mechanical  environment.374    The  high  speed  of  modern  in- 


54  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

dustrial  processes,  the  ceaseless  din  amidst  which  they  are 
carried  on,  the  excessive  hours  in  many  employments,  the 
difficulty  of  focusing  attention  upon  a  monotonous  and  in- 
cessantly recurring  operation,  impose  a  strain  upon  indus- 
trial operatives  which  makes  occasional  inadvertence  on 
their  part  as  inevitable  as  it  is  disastrous. 

In  short,  "it  is  coming  to  be  well  understood  by  all  who 
have  studied  the  circumstances  of  modern  industrial  em- 
ployments that  the  supposed  contributory  negligence  of 
employees  is  in  effect  the  result  of  the  mechanical  conditions 
imposed  on  them  by  the  nature  of  their  employment,  and 
that  by  reason  of  these  conditions  the  individual  vigilance 
and  responsibility  contemplated  by  the  common  law  are  im- 
possible in  practice."  875 

To  these  mechanical  causes  of  contributory  negligence 
must  be  added  others  for  which  the  individual  workman  is 
no  more  responsible  than  for  the  conditions  under  which  he 
works  —  the  ignorance  of  "green"  hands  or  of  tongue-tied 
immigrants,  the  horse-play  and  mischief  of  children  and 
young  persons,  and  the  physical  defects  which  do  not  keep 
the  victims  out  of  dangerous  trades  but  which  do  render 
them  peculiarly  liable  to  injury.376 

Thus,  the  investigators  of  the  Pittsburgh  Survey  found 
that  of  410  fatalities,  22,  or  five  per  cent,  were  due  to  the  ig- 
norance or  unskillfulness  of  "greeners";  13,  or  three  per 
cent,  were  due  to  the  extreme  youth  of  the  victims ;  8,  or  two 
per  cent,  to  intoxication ;  4,  or  one  per  cent,  to  physical  weak- 
nesses ;  22,  or  five  per  cent,  to  sheer  heedlessness ;  and  83,  or 
twenty  per  cent,  to  momentary  inattention,  more  or  less  ex- 
cusable by  the  circumstances,  or  to  the  deliberate  taking  of 
chances  in  order  to  save  time  and  avoid  effort.377  Of  132 
fatalities  attributable  to  the  victims'  "fault",  in  the  com- 
mon law  sense,  no  more  than  85  were  due  to  "heedlessness, 
inattention,  or  recklessness",  and  a  considerable  number, 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  55 

even  of  these  85,  must  be  explained  by  the  high  speed  of  the 
work  and  by  the  workers'  habituation  to  danger. 

The  common  law  doctrine  of  contributory  negligence  is, 
then,  defective  in  that  it  fails  to  take  account  of  men  as  they 
are.  A  practical  science  which  has  to  do  with  the  ordinary 
relations  of  everyday  life  ought  not  to  be  based  on  the  un- 
real abstractions  of  an  antiquated  psychology.  If  "con- 
tributory negligence"  is  to  bar  recovery  for  a  work  acci- 
dent, "negligence"  should  be  denned  as  failure  of  that  care 
ordinarily  practiced  by  men  of  the  same  calling  under  cir- 
cumstances similar  to  those  of  the  case  at  bar. 

The  logical  foundations  of  the  rule  under  discussion  are 
hardly  more  secure  than  the  psychological  assumptions 
which  gave  birth  to  the  ' '  reasonable  man ' '.  The  rule  can  not 
be  based  on  the  doctrine  of  proximate  cause,  for  there  are 
numberless  cases  where  the  contributory  negligence  of  the 
plaintiff  was  no  more  a  proximate  cause  of  the  injury  than 
was  the  fault  of  the  defendant.378  It  can  not  be  grounded  on 
the  fact  that  the  defendant's  negligence  in  such  cases  is  not 
the  sole  efficient  cause  of  the  injury,  since  the  concurrence 
of  another  cause  never  relieves  a  wrong-doer  from  the  con- 
sequences of  his  own  fault.379  Nor  will  it  do  to  say  that  re- 
covery is  not  allowed  because  the  law  will  not  undertake  to 
determine  which  of  two  wrong-doers  is  most  at  fault  38°  — 
the  injured  person  is  not  a  wrong-doer,  since  no  man  owes 
a  legal  duty  of  protection  to  himself.381 

Lastly,  the  doctrine  of  contributory  negligence  can  not  be 
justified  by  the  unfitness  of  a  jury  to  apportion  damages  to 
the  degree  of  fault.382  If  juries  can  be  trusted  to  determine 
the  nice  questions  of  contributory  negligence,  assumption  of 
risk,  and  fellow-servant  or  vice-principal,  they  can  discharge 
this  further  duty  also.  In  point  of  fact,  the  present  rule 
rests  upon  no  other  basis  than  the  general  individualism  of 
the  common  law  — ■  whereof  it  is,  indeed,  one  of  the  most  ex- 
treme expressions.383    No  man  owes  any  duty  to  another  be- 


56  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

yond  that  of  affording  him  the  opportunity  to  protect  him- 
self. If,  therefore,  the  injured  person  could  have  prevented 
his  injury  by  the  exercise  of  ordinary  care  he  is  not  allowed 
to  recover. 

The  day  when  the  social  philosophy  of  laissez  faire  was  a 
sufficient  authentication  of  juristic  principles  that  have  to 
do  with  practical  affairs  lies  some  two  generations  in  the 
past.  Accordingly,  as  changed  industrial  conditions  have 
made  the  common  law  rule  of  contributory  negligence  more 
and  more  oppressive  in  operation,  there  has  appeared  a 
vigorous  and  widespread  demand  for  the  modification  of 
that  rule. 

Statutory  Modification  of  Contributory  Negligence  :  —  In 
response  to  this  demand,  statutes  affecting  the  law  of  con- 
tributory negligence  have  been  enacted  by  fifteen  States,  by 
the  District  of  Columbia,  and  by  the  United  States.  These 
statutes  are  of  three  types.  (1)  In  Indiana  contributory 
negligence  is  made  an  affirmative  defense,  to  be  pleaded  and 
proven  by  the  employer.384  (2)  In  six  States  contributory 
negligence  is  not  a  bar  to  recovery  where  the  violation  by 
the  employer  of  specified  safety  laws  is  the  ground  of  ac- 
tion.385 (3)  The  rule  of  proportional  negligence,  borrowed 
from  admiralty  law,386  whereby  want  of  care  on  the  part  of 
the  person  injured  does  not  defeat  recovery,  but  only  effects 
a  reduction  of  damages  proportionate  to  such  want  of  care,387 
is  established  as  to  all  employments  in  Ohio  388  and  the  Dis- 
trict of  Columbia,389  as  to  mines,  smelters,  and  ore  mills  in 
Nevada,390  as  to  coal  mines  and  clay  works  in  Maryland,391 
as  to  building  operations  in  Oregon,392  and  as  to  railways  by 
nine  States  393  and  by  the  United  States.394 

The  Iowa  statute,  dating  from  1909,  is  restricted  to  rail- 
way employees  and  combines  the  types  numbered  (2)  and 
(3)  above.    The  text  of  the  act  is  as  follows: 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  57 

That,  in  all  actions  hereafter  brought  against  any  such  corpora- 
tion [operating  a  railway]  to  recover  damages  for  the  personal  in- 
jury or  death  of  any  employe  under  or  by  virtue  of  any  of  the 
provisions  of  this  section,  [Code  of  1897,  Section  2071,  the  railway 
liability  statute]  the  fact  that  the  employe  may  have  been  guilty  of 
contributory  negligence  shall  not  bar  a  recovery,  but  the  damages 
shall  be  diminished  by  the  jury  in  proportion  to  the  amount  of 
negligence  attributable  to  such  employe;  provided,  that  no  such 
employe  who  may  be  injured  or  killed  shall  be  held  to  have  been 
guilty  of  contributory  negligence  in  any  case  where  the  violation 
by  such  common  carrier  or  corporation  of  any  statute  enacted  for 
the  safety  of  employes  contributed  to  the  injury  or  death  of  such 
employe.393 

This  act  has  not  yet  been  construed  by  the  courts.  There 
is  little  doubt,  however,  that,  as  part  of  the  Railway  Lia- 
bility Statute,  the  Contributory  Negligence  Act  applies  only 
to  injuries  arising  from  the  peculiar  hazards  of  railway  op- 
eration 396  and  that  railway  companies  can  not  contract  out 
of  their  liability  under  the  act.  To  employees  within  its  pro- 
visions the  new  legislation  is  probably  at  least  as  important 
as  the  fellow-servant  act  already  noticed.  If  anything,  the 
common  law  rule  of  contributory  negligence  barred  re- 
covery in  a  larger  number  of  railway  accidents  than  the 
fellow-servant  rule. 

ASSUMPTION  OF  RISK 

When  the  plaintiff  in  an  employers'  liability  action  has 
made  out  his  case,  when  it  clearly  appears  that  the  injury 
was  caused  by  a  condition  for  which  the  employer  was  re- 
sponsible, and  wTas  in  no  way  contributed  to  by  the  fault  of 
the  injured  employee,  the  master  may  still,  at  common  law, 
escape  liability  by  setting  up  the  curious  contention  that  the 
employee  had  ' '  assented ' '  to  the  negligence,  and  ' '  assumed ' ' 
the  risk,  and  "waived"  his  right  to  recover.  Not  that  the 
employee  had  consciously  agreed  to  release  his  master  from 
the  obligation  to  use  ordinary  care  for  his  safety.    But  be- 


58  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

cause  he  had  continued  at  work  knowing  that  the  employer 
was  negligent  in  the  particular  respect  that  caused  his  in- 
jury the  law  implies  that  the  employee  assumed  the  risk  of 
being  injured  thereby.397  For,  it  is  reasoned,  the  employee 
is  free  to  quit  the  service  of  a  master  who  will  not  remedy  a 
dangerous  condition.398  If,  then,  knowing  the  danger,  he 
chooses  rather  to  encounter  it  than  to  seek  other  employ- 
ment, he  is  barred  from  recovery  under  the  ancient  maxim, 
volenti  non  fit  injuria  (that  to  which  one  assents  is  no 
wrong)  .3" 

The  " assumption  of  risk"  herein  considered  is  to  be 
sharply  distinguished  from  so-called  "assumption  of  ordi- 
nary risks",  on  the  one  hand,  and  from  contributory  negli- 
gence, on  the  other.  The  "ordinary  risks  of  the  employ- 
ment" are  assumed  by  the  servant  in  the  sense  that  an  in- 
jury arising  therefrom,  not  being  attributable  to  the  mas- 
ter's negligence,  affords  no  ground  of  action.  The  "extra- 
ordinary risks",  on  the  contrary,  are,  by  definition,  those 
for  which  the  master  is  prima  facie  responsible.400  The  ser- 
vant's assumption  of  these  risks,  therefore,  operates  to  re- 
lieve the  master  of  liability  for  an  admitted  wrong.401  Con- 
tributory negligence,  again,  refers  to  the  conduct  of  the 
injured  person  at  the  time  of  the  injury ;  assumption  of  risk 
refers  to  continuance  at  work  with  knowledge  of  a  condition 
which  menaces  injury  at  an  indeterminate  time.  Hence  a 
workman  may  be  debarred  from  recovery  by  his  assumption 
of  the  risks  that  occasioned  his  hurt,  notwithstanding  he 
was  exercising  all  due  care  at  the  time  of  the  accident.  Con- 
versely, he  may  be  non-suited  for  contributory  negligence  in 
respect  to  a  risk  that  he  had  not  assumed.402 

Assumption  of  extraordinary  risks  is  an  affirmative  de- 
fense which  must  be  pleaded  by  the  master  and  sustained 
by  a  preponderance  of  evidence.403  To  make  good  his  con- 
tention on  this  issue  the  employer  must  prove  (1)  that  the 
employee  knew,  or  in  the  exercise  of  ordinary  care  should 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  59 

have  known,  of  the  defect  which  occasioned  his  injury ; 404 
(2)  that  he  appreciated  the  extra  hazard  resulting  there- 
from; 405  and  (3)  that  with  such  knowledge  and  appreciation 
he  continued  at  work,  exposed  to  such  abnormal  hazard, 
without  any  special  inducement  so  to  do,  other  than  unwill- 
ingness to  join  the  army  of  the  unemployed.406 

Actual  knowledge  of  the  dangerous  condition  need  not  be 
shown  in  order  to  charge  the  employee  with  assumption  of 
the  risk,  since  every  person  is  held,  in  law,  to  know  what,  in 
the  exercise  of  ordinary  care,  he  ought  to  know.407  Ordinary 
care  requires  the  employee  to  use  reasonable  diligence  to 
discover  the  open  and  obvious  dangers  around  him,408  and 
he  is  chargeable  with  knowledge  of  any  danger  which  it 
would  have  been  possible  to  discover  by  the  exercise  of  such 
care  as  persons  of  ordinary  intelligence  may  be  expected  to 
take  for  their  own  safety.409  But  he  is  not  required  to  in- 
spect or  search  for  obscure  dangers  or  defects  in  his  place 
of  work,  or  in  the  machinery  or  appliances  which  are  fur- 
nished to  him.410  Whether  an  employee  is  chargeable  with 
knowledge  and  appreciation  of  a  particular  risk  will  depend 
upon  his  age  and  experience,411  his  opportunities  for  ac- 
quaintance with  his  surroundings,412  the  means  of  informa- 
tion at  his  command,413  and  the  obviousness  of  the  danger 
to  which  he  is  exposed.  A  minor  is  not  as  a  matter  of  law 
incapable  of  assenting  to,  and  assuming  the  risk  of,  a  hazard 
created  by  the  negligence  of  his  employer.414  But  the  age 
and  experience  of  the  employee  are  always  important  con- 
siderations in  determining  whether  he  knows  or  ought  to 
know  and  appreciate  the  peril  to  which  he  is  exposed.415 

An  employee  is  chargeable  with  knowledge  and  apprecia- 
tion of  all  dangers  which  are  open  and  obvious,416  that  is  to 
say,  discoverable  by  the  exercise  of  reasonable  care.417  A 
bridge  above  a  railway  track  too  low  to  be  cleared  by  a 
brakeman  standing  on  the  top  of  a  box  car,418  a  projecting 
girder  in  an  elevator  shaft,419  or  a  coal  chute  in  close  prox- 


60  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

imity  to  a  railway  track  420  present  dangers  which  must  be 
patent  to  any  person  oi'  ordinary  intelligence.  But  where 
the  risk  is  not  apparent  it  is  not  assumed  unless  there  are 
circumstances  showing  that  it  should  have  been  appreciat- 
ed.421 

Assumption  of  risk  relieves  the  master  of  all  liability  for 
the  non-discharge  of  his  common  law  duties.  Recovery  is 
thus  barred  for  failure  to  provide  a  safe  place  to  work  422 
or  safe  machinery  423  and  appliances,  to  hire  competent  ser- 
vants,424 or  to  conduct  the  business  on  a  safe  system.425 

The  law  is  less  clear  with  reference  to  statutory  duties  of 
the  master.  It  appears  to  be  settled  that  a  servant  may 
''consent"  to  his  violation  of  a  statute  not  expressly  enacted 
for  the  protection  of  employees,426  as  an  ordinance  regulat- 
ing the  speed  of  railway  trains  within  the  corporate  limits 
of  a  city.427  But  it  is  not  easy  to  reconcile  the  decisions  un- 
der the  safety  laws  proper. 

Under  the  act  forbidding  the  employment  of  children  to 
operate  machinery  it  was  held,  in  1907,  that  children  within 
the  prohibited  age  are  presumptively  incapable  of  appreciat- 
ing the  dangers,  and  assuming  the  risks,  attendant  upon 
such  employment.  "Public  policy",  it  was  said,  "would 
seem  to  demand  that  the  statute  which  undertakes  to  protect 
children  against  the  hazards  to  which  the  recklessness  and 
inexperience  of  childhood  expose  them  shall  not  be  defeated 
of  its  purpose  by  pleading  that  same  childish  recklessness 
and  ignorance  as  a  reason  for  exempting  an  employer  from 
responsibility  for  his  own  wrong."  428  With  respect  to  adults 
it  was  held  in  1907  that  an  experienced  bakery  operative  may 
assume  the  risk  of  being  injured  by  an  unguarded  dough- 
mixer  notwithstanding  that  the  factory  acts  require  such 
machinery  to  be  guarded.429  Four  years  later,  however,  the 
Supreme  Court  explicitly  held  that  where  the  negligence 
charged  constitutes  the  violation  of  a  statute  expressly  en- 
acted for  the  servant's  benefit  the  master  can  not  avail  him- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  61 

self  of  the  plea  of  assumption  of  risk  against  the  conse- 
quences of  his  own  wrong.  Said  Mr.  Justice  Weaver,  speak- 
ing to  this  point : 

To  say  that  the  Legislature  in  enacting  these  measures  of  pro- 
tection which  iu  some  degree  equalize  the  advantages  of  employer 
and  employe  and  afford  a  needed  protection  to  the  persons  and  lives 
of  the  latter  intended  that  the  master  might  violate  the  statute  to 
the  injury  or  death  of  his  servant,  and  then  escape  liability  by 
pleading  and  proving  that  his  offense  against  the  law  was  habitual, 
obstinate  and  notorious,  is  inconsistent  with  justice  and,  it  is  hardly 
extravagant  to  say,  repugnant  to  good  morals.  Such  a  rule  offers 
a  premium  to  contemptuous  disregard  of  the  statute,  and  robs  it 
substantially  of  all  value  to  the  class  in  whose  interest  it  was  en- 
acted.439 

In  the  opinion  last  cited  the  bakery  case  of  1907  was  con- 
strued as  turning  on  the  contributory  negligence  of  the  in- 
jured employee  which  left  the  servant's  assumption  of  risk 
from  the  master's  violation  of  a  safety  statute  an  open 
question.431  But,  though  the  later  decision  was  evidently 
intended  to  establish  a  controlling  precedent,  the  same  court 
in  the  same  term  held  that  a  laundry  worker  did  not  assume 
the  risk  created  by  the  absence  of  a  guard  upon  a  mangle  at 
which  she  was  employed,  not  because  the  failure  to  provide 
a  guard  was  a  violation  of  the  factory  act,  but  because,  being- 
inexperienced,  she  was  not  chargeable  with  knowledge  that 
such  a  guard  was  practicable,  nor  with  appreciation  of  the 
extra  hazard  arising  from  its  absence.432  Later  still,  the 
Court,  reverting  to  the  more  humane  view,  has  decided  in 
several  cases  that  an  employee  does  not  assume  the  risk  of  a 
violation  of  the  safety  laws,  although  he  knows  of  such  vio- 
lation and  appreciates  the  danger  incident  thereto.433 

It  may  be  concluded,  therefore,  that  the  law  in  Iowa  now 
is  that  an  employee  can  not  in  any  case  assume  the  risk  of,  or 
"consent  to",  his  employer's  violation  of  a  statute  enacted 
expressly  for  the  safety  of  employees.     This  doctrine  is  cer- 


62  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

tainly  more  humane  than  the  opposite  view,  and  it  seems 
also  to  be  better  supported  by  the  decisions  in  other  juris- 
dictions.434 The  rule  which  negatives  assumption  of  risk  in 
every  such  case  has  the  further  advantage  of  avoiding  the 
great  uncertainty  and  the  numerous  appeals  which  must 
result  from  making  assumption  turn  on  the  particular  facts 
of  each  case.435 

Even  in  actions  founded  solely  on  the  common  law,  as- 
sumption of  risk  may  be  negatived  by  an  affirmative  showing 
that  the  servant  was  justified  in  continuing  at  work,  although 
he  knew  and  appreciated  the  danger  to  which  he  was  exposed 
by  reason  of  his  master's  negligence.  Such  justification 
may  be  afforded  by  several  circumstances. 

First.  An  employee  does  not  assume  a  risk  of  which  he 
only  becomes  aware  at  the  moment  of  his  injury.  No  one  is 
properly  chargeable  with  knowledge  of  a  peril  unless,  in  the 
exercise  of  reasonable  care,  he  might  have  become  aware  of 
it  sufficiently  in  advance  to  enable  him  to  protect  himself 
therefrom.436  Moreover,  it  would  be  unreasonable  to  re- 
quire an  employee  to  abandon  his  master's  service  the  in- 
stant he  discovers  a  dangerous  condition.  He  may  wait  a 
reasonable  time  to  see  whether,  upon  complaint,  the  danger 
will  be  removed ;  and  during  such  time  he  is  not  chargeable 
with  assumption  of  risk.437 

Second.  When  the  employee  continues  at  work  in  reliance 
upon  the  master's  assurance  that  a  dangerous  condition  will 
be  remedied,  the  employee's  assumption  of  the  risk  arising 
from  the  condition  promised  to  be  remedied  is  suspended, 
eo  instante,  by  such  promise,  and  his  right  of  recovery  re- 
mains intact  so  long  as  he  may  reasonably  expect  the  prom- 
ise to  be  fulfilled.438  The  master's  promise  need  not  be  ex- 
pressed :  it  is  sufficient  if  the  servant  has  a  right  to  believe 
that  the  defect  will  be  remedied.439  Nor  need  the  promise  be 
made  by  the  master  himself,  since  he  is  bound  by  the  act  of 
one  having  authority  in  such  matters.440 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  63 

It  has  been  said,  in  at  least  one  case,  that  a  servant  does 
not  assume  the  risk  of  any  defects  in  the  things  about  which 
he  is  employed  unless,  knowing  the  defects,  he  remains  in 
the  employment  of  his  master  without  objection  or  protest 
against  their  continuance.441  Protest  is  here  apparently 
treated  as  evidence  of  non-consent,  and  so  as  inconsistent 
with  the  theory  of  "voluntary  assumption  of  risk".  But  so 
merciful  a  view,  if  it  were  really  entertained,  has  not  been 
adopted.  It  is  now  settled  that  complaint  of  a  defect,  with- 
out a  promise  of  remedy,  will  not  relieve  the  employee  of 
assumption  of  the  risk  if  he  continues  in  the  service.442 

Third.  A  servant  may  be  justified  by  express  command  of 
the  master  or  his  representative  in  doing  an  act  from  which 
danger  may  reasonably  be  apprehended.443  This  rule  is  es- 
pecially applicable  to  employments  like  railroading  in  which 
due  subordination  and  prompt  obedience  to  orders  are  in- 
dispensable to  the  safety  of  life  and  property.  But  to  justify 
a  particular  act  the  order  must  be  specific ; 444  while  even  an 
express  command  will  not  excuse  an  employee  in  incurring 
an  unnecessary  danger  which  is  apparent  to  him.445 

Fourth.  A  principle  which  is  somewhat  analogous  to  that 
just  stated  is,  that  a  servant  is  entitled  to  place  some  reli- 
ance upon  the  assurance  of  his  superior  who  is  presumably 
better  informed  than  himself  that  an  appliance  is  safe  or 
that  an  act  may  be  safely  done.446  Either  an  express  com- 
mand or  an  assurance  of  safety  tends  to  negative  both  con- 
tributory negligence  and  assumption  of  risk,  since  the  one 
implies  a  want  of  voluntary  action  and  the  other  shows  ex- 
cusable ignorance  of  the  danger  to  be  incurred. 

It  has  been  seen  that  an  act  which  would  otherwise  be  con- 
tributory negligence  may  be  excusable  when  the  employee's 
attention  is  necessarily  engrossed  by  the  performance  of 
duty  so  that  a  known  danger  is  absent  from  his  mind,  or 
where  an  emergency  exists  requiring  prompt  action.  It  is 
clear,  however,  that  circumstances  such  as  these  can  not,  in 


64  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

a  logical  point  of  view,  be  held  to  negative  a  contractual 
assumption  of  risk.  For  when  a  risk  has  been  assumed, 
the  master's  negligence  with  respect  thereto  is  waived,  and 
this  waiver  can  not  be  affected  by  the  particular  situation  in 
which  the  employee  may  be  placed,  or  the  rapidity  and 
promptness  with  which  he  may  be  required  to  act  at  the  time 
of  the  accident.447  Such  is  undoubtedly  the  general  rule  as 
recognized  in  this  and  other  States.448 

Criticism  of  Assumption  of  Risk :  — ■  Assumption  of  risk, 
in  common  with  other  employers'  liability  doctrines,  finds  its 
sanction  in  the  laissez  faire  economics  of  our  great  grand- 
fathers.449 That  the  real  foundations  of  the  doctrine  are 
economic,  rather  than  juristic,  may  be  shown  by  reducing 
it  to  a  series  of  propositions.  First.  No  man  owes  any 
duty  of  protection  to  another  beyond  affording  him  the 
opportunity  to  protect  himself.  Second.  Consequently, 
one  who  knowingly  incurs  a  danger  which  he  might  have 
avoided  can  not  complain  of  an  injury  thereby  sustained 
(expressed  in  the  maxim,  volenti  non  fit  injuria).45"  Third. 
The  employee  is  not  bound  to  risk  life  or  limb  in  the  service 
of  his  employer.  He  may  insist  on  wages  proportionate  to 
the  risk  he  incurs,  may  decline  an  extra-hazardous  employ- 
ment, or  protest  against  unduly  dangerous  conditions  and 
quit  the  service  of  a  master  who  will  not  exercise  proper  care 
for  his  safety.451  Fourth.  If,  therefore,  an  employee  rather 
than  quit  his  master's  employment  chooses  to  work  in  a  sit- 
uation which  exposes  him  to  abnormal  hazard,  the  risk  of 
being  injured  thereby  is  his  own.452 

The  weakness  of  this  chain  of  reasoning  lies  in  the  postu- 
late, that  the  wage-earner  is  free  to  choose  the  conditions 
under  which  he  will  work.  It  may  be  true,  in  an  academic 
sense,  that  the  wage-worker  is  at  liberty  to  seek  other  em- 
ployment if  he  does  not  like  his  employer's  methods.453  His 
limbs  are  not  fettered,  he  is  not  restrained  by  physical  force 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  65 

nor  by  threat  of  bodily  harm,  nor  is  be  legally  bound  to  con- 
tinue in  a  particular  employment.  Nevertheless,  in  practi- 
cal life,  poverty,  ignorance  of  other  opportunities,  scarcity 
of  employment,  dependence  of  family,  and  other  economic 
circumstances  often  compel  the  wage-worker  to  accept  em- 
ployment on  any  terms  that  are  offered.454  Men  do  not  choose 
to  work  in  fire-traps,  or  to  couple  moving  cars  with  a  link 
and  pin,  any  more  than  they  prefer  to  live  in  slums  or  to  die 
of  "phossy  jaw";  but  they  are  constrained  by  the  fear  of 
losing  their  jobs  to  face  the  chance  of  injury  rather  than  of 
destitution.  Practically  speaking,  the  locomotive  engineer 
just  in  from  a  twelve-hour  trip  can  not  decline  to  take  out 
another  train :  to  do  so  would  be  to  incur  dismissal  and  to 
court  black-listing.  The  machine  tender  can  not  quit  his 
post  because  he  is  exposed  to  an  unguarded  set-screw:  in 
the  absence  of  penal  legislation  he  would  find  unguarded 
set-screws  in  other  factories,  even  should  he  be  fortunate 
enough  to  obtain  a  place  in  one  of  them. 

In  short,  the  worker's  liberty  to  protect  himself  against 
undue  hazard  by  exercising  his  right  to  quit  is,  as  even  the 
courts  are  beginning  to  perceive,  "a  myth"  45°  and  "a  heart- 
less mockery".456  But  this  recognition  of  the  involuntary 
character  of  the  "servant's  assumption  of  risk"  leaves  the 
whole  doctrine  without  support  in  equity  or  morals. 

Statutory  Modification  of  Assumption  of  Risk:  —  The 
rule  which  makes  the  employee  remediless  against  even  the 
gross  negligence  of  his  employer,  if  only  that  negligence  is 
habitual  and  notorious,  is  so  oppressive  to  workingmen  4" 
that  organized  labor  has,  not  unnaturally,  long  sought  to 
secure  its  abrogation.  The  courts  having  declared  their 
inability  to  modify  the  judge-made  law  in  this  respect,458  the 
unions  appealed  to  the  legislature.  Their  first  success  was 
won  in  1890,  when  the  defense  of  assumption  of  risk  was 
abolished  as  against  violations  of  the  automatic  coupler  and 


66  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

brake  law  enacted  in  that  year.459  They  had  to  wait  half  a 
generation  before  they  gained  strength  enough  to  carry  a 
second  outwork  in  the  employer's  fortress.  A  bill  which 
would  have  enabled  employees  to  relieve  themselves  of  the 
assumption  of  extraordinary  risks  by  notifying  the  master 
of  defects  in  ways,  works,  or  machinery  was  introduced  at 
the  legislative  session  of  1906 ;  46°  but  was  defeated  by  the 
combined  opposition  of  manufacturers  and  railways.461  At 
the  next  meeting  of  the  General  Assembly,  however,  the 
Iowa  Federation  of  Labor  and  the  State  Manufacturers' 
Association  agreed  upon  a  compromise  measure  which  be- 
came law.462 

The  Assumption  of  Eisk  Act  of  1907  is  as  follows : 

In  all  cases  where  the  property,  works,  machinery  or  appliances 
of  an  employer  are  defective  or  out  of  repair  and  the  employe  has 
knowledge  thereof,  and  has  given  written  notice  to  the  employer, 
or  to  any  person  authorized  to  receive  and  accept  such  notice,  or  to 
any  person  in  the  service  of  the  employer  and  entrusted  by  him  with 
the  duty  of  seeing  that  the  property,  works,  machinery  or  appli- 
ances are  in  proper  condition,  of  the  particular  defect  or  want  of 
repair  or  when  the  employer  or  such  other  person  has  been  notified 
in  writing  of  such  defect  or  want  of  repair  by  any  person  whose 
duty  it  is  under  the  rules  of  the  employer  or  the  laws  of  the  state  to 
inspect  such  works,  machinery  or  appliances,  or  any  person  who  is 
subject  to  the  risk  incident  to  such  defect  or  want  of  repair;  no 
employe  after  such  notice,  shall  by  reason  of  remaining  in  the  em- 
ployment with  such  knowledge,  be  deemed  to  have  assumed  the  risk 
incident  to  the  danger  arising  from  such  defect  or  want  of  repair.463 

The  labor  unionists  were  by  no  means  satisfied  with  this 
legislation.  Particularly  objectionable  to  them  was  the  re- 
quirement that  the  employee  give  written  notice  of  defects 
if  he  would  avoid  assuming  the  risk  thereof.  Some  work- 
men, it  was  urged,  are  unable  to  write  and  many  would 
probably  be  deterred  by  fear  of  discharge  from  filing  notice 
of  dangerous  conditions.464    Accordingly,  vigorous  efforts 


AN  ANALYSIS  OP  EMPLOYERS'  LIABILITY  67 

were  made  to  have  the  act  of  1907  amended  by  the  Thirty- 
third  General  Assembly,  and  the  result  was  the  Assumption 
of  Risk  Act  of  1909  which  reads  as  follows : 

Iu  all  cases  where  the  property,  works,  machinery,  or  appliances 
of  an  employer  are  defective  or  out  of  repair,  and  where  it  is  the 
duty  of  the  employer  from  the  character  of  the  place,  work,  machin- 
ery or  appliances  to  furnish  reasonably  safe  machinery,  appliances 
or  place  to  work,  the  employe  shall  not  be  deemed  to  have  assumed 
the  risk,  by  continuing  in  the  prosecution  of  the  work,  growing  out 
of  any  defect  as  aforesaid,  of  which  the  employe  may  have  had 
knowledge  when  the  employer  had  knowledge  of  such  defect,  except 
when  in  the  usual  and  ordinary  course  of  his  employment  it  is  the 
duty  of  such  employe  to  make  the  repairs,  or  remedy  the  defects. 
Nor  shall  the  employe  under  such  conditions  be  deemed  to  have 
waived  the  negligence,  if  any,  unless  the  danger  be  imminent  and 
to  such  extent  that  a  reasonably  prudent  person  would  not  have 
continued  in  the  prosecution  of  the  work ;  but  this  statute  shall  not 
be  construed  so  as  to  include  such  risks  as  are  incident  to  the  em- 
ployment. And  no  contract  which  restricts  liability  hereunder  shall 
be  legal  or  binding.465 

This  statute  has  not  yet  been  construed  by  the  Supreme 
Court 466  so  that  its  precise  effect  must  be  a  matter  of  opin- 
ion. (1)  The  language  of  the  act  is  that  of  the  common  law 
and  it  is  apparently  intended  to  abrogate  the  doctrine  of 
assumption  of  risk  due  to  the  master's  negligence.  Hence 
it  does  not  apply  to  working  places,  such  as  a  miner's  room, 
which  by  law  or  custom  are  in  the  keeping  of  the  work- 
man; 467  nor  to  defects  which  it  is  the  duty  of  the  employee 
to  repair,  since  the  risk  of  injury  in  making  such  repairs  is 
an  "ordinary"  risk  of  the  employment,468  while  failure  to 
make  the  repairs  would  be  contributory  negligence.469  As  to 
all  other  cases,  the  employer's  knowledge  of  a  defect  is 
treated  as  equivalent,  in  common  law,  to  a  continuing  prom- 
ise to  repair.  (2)  Being  remedial,  rather  than  penal  in 
character,  the  act  probably  will  be  broadly  construed.     If 


68  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

so,  it  will  not  be  necessary  to  show  that  the  employer  had 
actual  knowledge  of  a  given  defect  if,  in  the  exercise  of  rea- 
sonable care,  he  or  his  vice-principal  would  have  known  of 
it.  (3)  The  language  of  the  act  does  not  embrace  unsafe 
methods  of  work,  nor  failure  to  formulate  rules,  or  to  em- 
ploy a  sufficient  number  of  reasonably  competent  servants. 
As  to  these  phases  of  the  master's  duty  assumption  of  ex- 
traordinary risks  apparently  remains  unaffected.470  (4) 
The  clause  as  to  "risks  incident  to  the  employment"  must 
be  regarded  as  surplusage.  Nothing  in  the  statute  would 
justify  a  construction  transferring  these  risks  from  the 
employee  to  the  employer.  (5)  The  clause,  "Nor  shall  the 
employee  under  such  conditions  be  deemed  to  have  waived 
the  negligence,  if  any,  unless  the  danger  be  imminent  and 
to  such  extent  that  a  reasonably  prudent  person  would  not 
have  continued  in  the  prosecution  of  the  work",  appears  to 
be  two-edged.  It  estops  the  employer  from  setting  up  the 
contention  that  the  employee  has  "waived"  the  negligence 
under  volenti  non  fit  injuria,  as  distinguished  from  assump- 
tion of  risk  —  a  contention  which,  if  the  courts  should  adopt 
a  narrowly  technical  view,  might  otherwise,  in  certain  cases, 
defeat  the  object  of  the  statute.471  It  leaves  assumption  of 
risk  operative  in  those  cases  where  in  other  jurisdictions 
continuance  at  work  would  constitute  contributory  negli- 
gence. How  much  this  exception  will  amount  to  will  evi- 
dently depend  on  what  the  courts  hold  to  be  a  "danger  im- 
minent and  to  such  extent  that  a  reasonably  prudent  person 
would  not  have  continued  in  the  prosecution  of  the  work". 
The  act  of  1909  is  evidently  more  favorable  to  the  em- 
ployee than  that  of  1907.  It  does  away  with  the  require- 
ment of  a  written  notice  of  defects  —  a  requirement  that 
would,  in  many  cases,  defeat  the  remedial  purpose  of  the 
statute.  It  prohibits  contracting  out  —  unless,  indeed,  the 
Supreme  Court  should  revert  to  the  view,  adopted  before 
the  Temple  Amendment  with  respect  to  the  Kail  way  Li  a- 


AN  ANALYSIS  OF  EMPLOYERS'  LIABILITY  69 

bility  Act,  that  an  employer  may,  notwithstanding  this  pro- 
hibition, escape  liability  by  maintaining  a  system  of  so- 
called  ''voluntary  relief".472  It  forecloses  the  defense  of 
volenti  non  fit  injuria  as  a  substitute  for  assumption  of  risk. 
One  might  wish  that  the  enumeration  of  negligent  acts  with 
respect  to  which  assumption  of  risk  is  abrogated  were  more 
exhaustive  and  that  provisions  analogous  to  those  of  the 
Temple  Amendment  were  incorporated  in  the  contracting- 
out  clause.  Still,  the  statute  as  it  stands  strips  the  once- 
formidable  doctrine  of  assumption  of  risks  of  most  of  its 
terrors  for  the  employee. 

The  Assumption  of  Risk  Act  of  1909  is  general  in  its  terms 
and  railways  are  doubtless  within  its  provisions.  An  as- 
sumption of  risk  clause  was,  none  the  less,  incorporated  by 
the  Thirty-third  General  Assembly  (1909)  in  the  Contribu- 
tory Negligence  Amendment  to  the  Railway  Liability  Stat- 
ute.    The  clause  reads  as  follows : 

Nor  shall  it  be  any  defense  to  such  action  [for  the  personal  in- 
jury or  death  of  an  employee]  that  the  employe  who  was  injured  or 
killed  assumed  the  risks  of  his  employment.473 

This  language  might  seem  to  refer  to  ordinary  risks,  but 
the  phrase  "nor  shall  it  be  any  defense"  clearly  indicates 
risks  due  to  the  negligence  of  the  railway  corporation  since 
assumption  of  ordinary  risks  is  not  a  matter  of  defense  — 
injuries  due  to  such  risks  afford  no  ground  of  action  at  com- 
mon law  (see  above,  p.  22)  nor  under  the  Railway  Liability 
Statute  (see  above,  p.  44).  As  a  part  of  the  Railway  Lia- 
bility Statute,  the  assumption  of  risk  provision  is  doubtless 
restricted  to  injuries  arising  from  hazards  peculiar  to  rail- 
way operation  (see  above,  p.  42)  and  is  fully  guarded 
against  "contracting  out"  (see  above,  p.  45).  As  to  in- 
juries within  its  scope  the  railway  assumption  of  risk  clause 
is  apparently  broader  than  the  general  Assumption  of  Risk 
Act. 


70  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

SUMMARY  OF  EXISTING  EMPLOYEES'  LIABILITY 

As  the  law  now  stands  in  Iowa  a  workman  who  has  been 
injured  in  the  course  of  an  ordinary  employment  may  re- 
cover if  he  can  show,  by  a  preponderance  of  evidence,  that 
his  injury  was  immediately  caused  by  his  employer's  failure 
to  exercise  ordinary  care  for  his  safety  and  was  not  in  any 
degree  proximately  contributed  to  by  any  want  of  ordinary 
care  on  the  part  of  the  injured  workman.  Conversely,  he 
can  not  recover  if  his  injury  was  due  to  an  "  ordinary  haz- 
ard" of  his  employment,  or  to  the  negligence  of  a  fellow- 
workman,  or  to  a  defect,  although  produced  by  his  employ- 
er's negligence,  which  it  was  the  employee's  duty  to  repair 
or  which  was  so  manifestly  and  immediately  dangerous  that 
a  "reasonably  prudent  person  would  not  have  continued  in 
the  prosecution  of  the  work".  By  way  of  exception  a  rail- 
way worker  is  permitted  to  recover  for  an  injury  arising 
out  of  the  operation  of  trains  notwithstanding  that  the  in- 
jury may  have  been  immediately  caused  by  the  negligence 
of  a  co-employee  and  although  it  may  have  been  in  some 
measure  contributed  to  by  the  negligence  of  the  injured 
workman  himself. 


IV 

THE  PRACTICAL  WORKING  OF  EMPLOYERS' 
LIABILITY 

The  foregoing  pages  have  set  forth  the  system  of  accident 
indemnity  worked  out  in  the  course  of  half  a  century  by  the 
joint  labors  of  the  courts  and  the  General  Assembly  of  Iowa. 
How  does  this  system  work?  Does  it  distribute  the  pecun- 
iary burden  of  work  accidents  in  an  equitable  manner,  as 
judged  by  current  morality?  Is  it  prompt,  certain,  and 
economical  in  operation?  Does  it  conduce  to  harmonious 
relations  between  employers  and  employees?  Does  it  offer 
adequate  incentive  to  those  who  have  the  power  to  avoid 
preventable  injuries?  If  defective  in  any  or  all  of  these 
respects,  can  its  defects  be  remedied  by  the  modification  of 
certain  details  without  abandoning  the  basic  principle  that 
there  can  be  no  recovery  except  where  the  employer  was  "at 
fault"?  To  answer  these  questions  it  will  be  necessarj^  to 
consider  in  some  detail  the  practical  working  of  the  existing 
law. 

WHO  BEARS  THE  LOSS 

Detailed  statistics  gathered  by  the  Imperial  Insurance 
Office  show  that  only  one-eighth  of  the  industrial  injuries  in 
the  German  Empire  are  due  to  ' '  defective  apparatus,  or  ar- 
rangements, etc.",  "Absence  of  or  defective  safety  appli- 
ances", "Absence  of  or  defective  regulations,  supervision", 
or  other  "fault"  of  the  employer  or  his  responsible  man- 
ager, supervisor  or  foreman,474  so  as  to  afford  any  ground  of 
recovery  under  the  Iowa  law. 

In  the  absence  of  first-hand  domestic  statistics  this  Ger- 
man experience  may  be  accepted  as  somewhat  indicative  of 

71 


72  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  proportion  of  work  accidents  for  which  the  Iowa  law 
provides  indemnity.  To  be  sure,  the  great  attention  paid  to 
accident  prevention  in  Germany  operates  to  reduce  the  per- 
centage of  industrial  casualties  attributable  to  the  fault  of 
employers.  But  this  fact  is  largely  offset  by  the  much  lower 
standard  of  care  set  up  by  the  common  law,  by  reason  of 
which  many  accidents  that  would  in  Germany  be  attributed 
to  the  employer's  fault  are  with  us  assigned  to  the  "ordi- 
nary risks"  of  the  employment.  In  Wisconsin  it  has  been 
estimated  that  less  than  twelve  per  cent  of  factory  accidents 
are  chargeable  to  the  employer 's  want  of * '  ordinary  care '  \475 
Experts  of  the  Minnesota  Bureau  of  Labor  estimate  that 
less  than  one-sixth  of  the  work  accidents  of  that  State  could 
be  prevented  by  "ordinary  care"  on  the  part  of  em- 
ployers.476 Data  for  such  an  estimate  have  not  hitherto 
(1911)  been  gathered  in  Iowa,  but  there  can  be  no  reason- 
able doubt  that  the  existing  law  grants  compensation  for 
only  a  small  minority  of  industrial  injuries  —  certainly  not 
more  than  one  out  of  six,  probably  not  more  than  one  out 
of  eight. 

What  has  just  been  said  refers  only  to  the  proportion  of 
work  injuries  for  which  the  employer  is  legally  responsible. 
In  practice,  of  course,  the  payment  of  compensation  often 
depends  on  other  factors  than  the  bare  legality  of  the  claim 
advanced.  In  the  first  place,  the  employer  may  grant  relief 
from  motives  of  policy  or  humanity  where  no  legal  liability 
exists,  or  he  may  compromise  a  claim  which  he  believes  to  be 
unfounded  rather  than  incur  the  expense  and  annoyance  of 
a  law-suit.  In  the  second  place,  juries  notoriously  are  prone 
to  award  verdicts  for  the  plaintiffs  in  employers'  liability 
cases,  partly  out  of  sympathy  with  necessitous  claimants 
combined  with  enmity  toward  wealthy  defendants,  partly 
because  of  an  ill-defined  but  wide-spread  belief  that  the  ex- 
isting law  is  inequitable.477  On  the  other  hand,  the  burden  of 
proof  resting  upon  the  plaintiff  in  an  employers'  liability 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    73 

case  is  a  heavy  handicap.  Necessarily  the  witnesses  in  his 
favor  are  his  co-employees ;  and  these,  whatever  their  secret 
sympathies,  commonly  are  afraid  to  testify  against  their 
employer's  interests.478  Hence  the  injured  workman  fre- 
quently fails  to  make  out  a  prima  facie  case  and  finds  him- 
self non-suited  for  lack  of  testimony.  This  fact,  and  the 
power  which  is  pretty  freely  exercised  by  both  trial  and 
appellate  courts  479  to  set  aside  verdicts  as  being  unsupport- 
ed by  the  evidence,  at  the  very  least  fully  off-set  the  bias  of 
juries  in  favor  of  the  plaintiffs.  Add  the  overwhelming 
strategic  advantage,  in  a  contest  where  Providence  is  most 
often  on  the  side  of  the  longest  purse,  of  a  great  employing 
corporation  over  a  penniless  litigant,  and  it  will  appear 
probable  that  the  number  of  work  accidents  for  which  sub- 
stantial recovery  is  had  does  not  much  exceed  the  number 
for  which  the  employer  is  legally  responsible. 

These  a  priori  conclusions  are  borne  out  by  such  limited 
investigations  as,  in  the  absence  of  full  records,  constitute 
our  only  sources  of  information  as  to  the  actual  working  of 
employers'  liability  in  common  law  jurisdictions.  Thus, 
the  investigators  of  the  Pittsburgh  Survey  found  that  of 
258  families  who  were  bereft  of  husband  and  father  by  a 
single  year's  work  accidents  in  Allegheny  County,  Pennsyl- 
vania, 59  received  nothing  whatever  from  the  employer,  65 
were  paid  bare  funeral  expenses,  40  obtained  some  assist- 
ance but  less  than  $500  each,  and  only  48  received  more  than 
one  year's  wages  of  the  lowest  paid  worker.480  The  de- 
pendents of  unmarried  men  fared  worse,  for  65  per  cent  of 
such  dependents  received  nothing  above  funeral  expenses. 
As  to  non-fatal  injuries,  56  per  cent  of  the  married  men,  66 
per  cent  of  the  single  men  contributing  to  the  support  of 
others,  and  69  per  cent  of  the  non-contributing  men  received 
nothing  to  make  up  for  lost  income.  Of  27  men  who  suffered 
mutilation  entailing  permanent  partial  disability  —  such  as 
the  loss  of  an  eye,  a  leg,  an  arm,  or  two  fingers  —  not  oiie 


74  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

received  more  than  $225,  that  is,  not  one  was  in  any  way  in- 
demnified for  the  permanent  impairment  of  his  earning  ca- 
pacity.481 

Investigations  in  other  States  than  Pennsylvania  yield 
analogous  results.  In  Cook  County,  Illinois,  the  dependents 
of  70  out  of  149  victims  of  fatal  work  accidents,  were  wholly 
uncompensated,  38  obtained  an  average  of  $700  by  settle- 
ment out  of  court,  and  40  had  claims  pending  after  the 
lapse  of  eighteen  months  or  more.482  In  Erie  County,  New 
York,  $500  or  more  was  paid  for  only  22,  and  $2000  or  more 
for  only  8  out  of  115  married  men  killed.  In  Manhattan 
Borough  only  4  out  of  67  families  recovered  as  much  as 
$2000  for  the  death  of  the  head  of  the  house.  Recovery  of 
more  than  $2000  was  had  in  2,  and  of  less  than  $500  in  35, 
of  57  fatal  cases  investigated  by  the  New  York  Department 
of  Labor.  Of  10  men  totally  disabled  for  life,  9  failed  to  get 
any  substantial  indemnity  and  the  remaining  victim  was 
still  seeking  damages  at  the  close  of  the  investigation.  In 
54  of  71  permanent  partial  disability  cases  no  substantial 
recovery  was  had,  while  more  than  $500  was  recovered  in  but 
six  cases.  No  substantial  indemnity  was  paid  in  708  out  of 
902  temporary  disability  cases.  In  other  words,  substantial, 
though  generally  inadequate,  indemnity  for  loss  of  earning 
capacity  was  paid  in  but  214  of  1222  work  accident  cases 
investigated  in  New  York  State  —  or  about  17  per  cent  of 
the  total.483  The  Minnesota  Bureau  of  Labor  found  that 
compensation  amounting  to  substantial  relief  was  paid  in 
11  per  cent  of  the  fatal  cases,  30  per  cent  of  the  permanent 
disability  cases,  and  50  per  cent  of  the  temporary  disability 
cases  investigated.484  In  Wisconsin,  of  306  workmen  se- 
riously but  not  fatally  injured,  72  received  nothing  from 
their  employers,  99  received  doctor  bills  only,  44  were  paid 
less  than  the  cost  of  medical  attendance,  and  only  91  re- 
covered even  a  part  of  the  wage  loss.485 

Even  more  significant  than  any  of  these  very  limited  col- 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    75 

lations  of  cases  is  the  experience  of  companies  writing  em- 
ployers' liability  insurance.  Nine  of  the  largest  of  such 
companies  in  three  years'  time  (1906-1908)  settled  414,681 
claims,  paying  compensation  in  but  52,427  cases  or  12.64 
per  cent  of  the  total  —  about  one  in  eight.480 

The  case  for  the  existing  law  of  employer's  liability  as  a 
system  of  indemnifying  work  accidents  is  nowise  strength- 
ened by  a  comparison  between  the  losses  sustained  and  the 
damages  recovered  on  account  of  such  accidents.  In  the 
Pittsburgh  District,  139  families  concerning  whom  all  the 
facts  were  ascertained  suffered  an  income  loss  of  $109,262 
yearly  and  recovered  a  total  of  $74,305,  from  which  is  to  be 
deducted  their  lawyers'  fees  (at  least  $25,000)  and  medical 
and  funeral  expenses  of  not  less  than  $100  each,  leaving  an 
average  net  indemnity  of  $254  for  the  death  of  a  bread- 
winner.487 The  average  compensation  for  a  workman's  eye 
in  the  same  community,  to  judge  from  reported  cases,  is 
$56.64;  for  a  leg,  $117.50;  for  an  arm,  $33.33;  for  a  finger, 
$7.14.488  Reckoning  a  life  at  only  three  years'  wages,  cer- 
tainly less  than  the  actuarial  value,  and  counting  in  expenses 
of  burial  and  medical  attendance,  it  appears  that  in  the  State 
of  New  York,  in  investigated  cases,  the  injured  workmen 
and  their  dependents  bear  83  per  cent  of  the  financial  cost 
of  fatal  injuries,  90  per  cent  of  the  cost  of  permanent  dis- 
ability, and  71  per  cent  of  the  losses  from  temporal  inca- 
pacity.489 In  Minnesota,  according  to  data  collected  by  the 
State  Bureau  of  Labor,  after  deducting  legal,  medical,  and 
funeral  expenses,  a  workman's  family  receive,  on  an  aver- 
age, $536  for  his  death.490  On  the  same  basis,  the  industries 
of  that  State  pay  $123.22  for  an  eye,  $557.50  for  a  hand, 
$1931.50  for  an  arm,  $88.22  for  one  or  more  fingers,  $156.40 
for  a  leg,  and  $256.66  for  a  foot.491  In  Michigan,  the  average 
compensation  in  35  fatal  cases  was  $388.53  and  in  7116  non- 
fatal cases  was  but  $10.91.  The  wage  loss  incurred  by  614 
employees     on     account     of    temporary     disability    was 


76  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

$58,189-77;  the  total  compensation  (inclusive  of  attorney's 
fees)  amounted  to  $24,189.78.492 

The  investigations  from  which  the  above  illustrations  are 
taken  were  so  limited  in  time  and  scope  that  no  great  signifi- 
cance can  be  attached  to  the  particular  averages  quoted.  It 
is  to  be  remembered,  moreover,  that  recent  legislation  has 
made  the  law  in  Iowa  more  favorable  to  the  work- 
man than  it  was  in  any  of  the  above-mentioned  ju- 
risdictions at  the  time  to  which  the  foregoing  data 
refer.  Still,  when  all  allowances  are  made,  the  gen- 
eral results  of  these  impartial  investigations  in  six 
widely  separated  States  fairly  represent  the  working  of  an 
employers'  liability  law  like  that  of  Iowa.  The  conclusion 
to  which  these  investigations  lead  is  inescapable  —  the  pe- 
cuniary cost  of  work  accidents  in  Iowa  falls  almost  wholly 
upon  the  victims  thereof.  The  workman  who  is  killed  or  in- 
jured in  the  course  of  his  employment  may  be  provided  with 
medical  attendance  or  a  decent  burial  by  the  policy  or  hu- 
manity of  his  employer,493  but  ordinarily  he  has  no  legal 
claim  thereto.  The  stricken  family  may  be  aided  by  neigh- 
bors scarcely  less  necessitous  than  themselves,494  or,  by  de- 
claring themselves  paupers,  they  may  receive  humiliating 
assistance  from  the  poor-law  authorities  or  the  associated 
charities.  But  in  at  least  five  cases  out  of  six  there  is  no 
indemnity  for  the  income  loss  occasioned  by  the  accident. 

Courts  have  often  remarked,  in  justification  of  this  dis- 
tribution of  the  cost  of  work  accidents,  that  the  ordinary 
and  expectable  risks  of  the  service  are  taken  into  considera- 
tion in  fixing  the  terms  of  employment,  so  that  the  wages 
paid  include  compensation  for  the  hazards  incurred  as  well 
as  for  the  labor  performed.495  Such  a  theory  may  have  had 
some  support  in  English  classical  economics,496  but  it  is 
founded  on  assumptions  which  have  long  since  been  ex- 
ploded 497  and  which  notoriously  are  contrary  to  fact.  If 
employers  and  workmen  stood  on  an  equal  footing  in  the 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    77 

negotiation  of  wage  agreements;  if  the  loss  of  his  place 
were  a  matter  of  trivial  consequence  to  a  wage-earner;  if 
laborers  possessed  exhaustive  knowledge  of  relative  pro- 
fessional risks,  and  of  opportunities  for  employment 
throughout  the  industrial  world;  if  local  attachments  or  the 
want  of  means  presented  no  obstacle  to  removal  from  Chi- 
cago to  Honolulu;  if  a  locomotive  engineer  could,  without 
loss  of  time  or  efficiency,  transfer  his  specialized  knowledge 
and  ability  to  type-setting  or  rail-rolling  —  wages  might 
conceivably  be  adjusted  to  risks.  But  the  unreality  of  these 
hypotheses  is  now  conceded  even  by  orthodox  economists  of 
the  straitest  sect.498  In  point  of  fact,  as  things  actually  are, 
occupational  hazards  appear  to  have  very  little  effect  on 
wages.499  Competition  does  not  suffice  to  shift  the  cost  of 
work  accidents  upon  employers.  Under  existing  law  the 
pecuniary  burden  of  such  accidents  rests  finally  where  it 
falls  in  the  first  instance  —  upon  the  injured  workmen  and 
their  dependents. 

When  the  economic  situation  of  wage-earners  is  called  to 
mind,  and  when  it  is  remembered  that  a  large  majority  of 
those  killed  or  injured  while  at  work  are  responsible  for 
the  maintenance  of  others  as  well  as  of  themselves,500  the 
reader  will  be  prepared  to  learn  that  the  ; '  by-products ' ' 501 
of  employers'  liability  are  want,  dependence,  child  labor, 
and  the  breaking  up  of  homes.  But  the  actual  findings  of 
investigators  in  various  common  law  jurisdictions  are  such 
as  to  startle  even  those  whose  personal  observation  has 
familiarized  them  with  the  working  of  employers'  liability. 
Of  147  families,  numbering  558  members,  who,  in  Cook 
County,  Illinois,  applied  for  out-door  relief  in  consequence 
of  industrial  injuries,  104  had  no  wage  income  whatever, 
and  43  were  earning  on  the  average  $6.88  per  week,  largely 
the  wages  of  children  under  sixteen  years  of  age.502  Of  86 
accident-made  widows  in  Cuyahoga  County,  Ohio,  48  found 
employment  at  an  average  weekly  wage  of  $5.51 ;  of  45  chil- 


78  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

dren  between  the  ages  of  twelve  and  eighteen  years,  27  were 
put  to  work.503  Out  of  132  families  in  the  Pittsburgh  Dis- 
trict, 55  widows  and  22  children  went  to  work,  13  families 
went  to  live  with  the  parents  of  the  widow  or  of  her  husband, 
and  35  other  families  were  kept  together  only  by  the  aid  of 
relatives.504  In  Wayne  County,  Michigan,  26  families,  num- 
bering 118  members,  who  became  dependent  as  the  result 
of  fatal  work  accidents,  enjoyed  aggregate  earnings  of 
$78.70  per  week.505 

These  experiences  are  typical.  When  a  skilled  craftsman 
is  killed  or  injured  in  the  course  of  duty,  the  children  are 
taken  out  of  school,  the  family  removes  to  less  comfortable 
quarters  in  a  more  undesirable  neighborhood,  the  mother 
takes  boarders  or  goes  out  to  work,  the  boys  sink  to  the  rank 
of  the  unskilled,  and  the  girls  marry  beneath  the  economic 
class  in  which  they  were  born.  When  a  similar  calamity 
befalls  a  common  laborer  the  widow  and  the  older  children 
eke  out  such  scanty  earnings  as  they  can  at  casual  work  or  in 
the  sweated  trades ;  if  the  family  are  numerous  or  the  chil- 
dren young,  the  pitiful  struggle  often  ends  in  dependence 
or  crime.506 

DELAY  AND  UNCEETAINTY  OF  THE  LAW 

The  existing  system  of  employers'  liability  not  only  de- 
nies indemnity  for  all  but  a  small  minority  of  work  acci- 
dents, but  it  grants  relief,  when  at  all,  only  after  delays 
that  often  make  the  final  recovery  little  better  than  none.  It 
is  immediately  following  an  industrial  injury,  when  medical 
and  funeral  expenses  are  to  be  met  and  when  the  ordinary 
wage  income  has  been  cut  off,  that  aid  is  most  needed  by  the 
stricken  family.  After  a  few  months,  when  the  sufferer  has 
died  or  returned  to  work,  when  the  mother  and  the  older 
children  have  found  employment,  and  when  the  family 
budget  has  been  re-adjusted  to  a  diminished  income,  the 
need  is  much  diminished.     Yet  settlement  through  the  courts 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    79 

frequently  is  delayed  until  the  economic  consequences  of  the 
death  or  disability  have  worked  out  their  worst  results  and 
the  evil  is  beyond  repair. 

In  Ohio  it  requires  two  years,  on  the  average,  to  reach 
final  judgment  in  a  fatal  accident  case.507  In  Cook  County, 
Illinois,  of  42  suits  begun  in  1908  only  two  had  been  decided 
by  October,  1910.  In  30  non-fatal  cases  in  the  same  county 
the  average  length  of  time  required  to  reach  a  settlement  by 
"due  process  of  law"  was  more  than  two  and  one-half  years, 
while  15  out  of  45  cases  were  still  pending  in  court  after 
periods  ranging  from  four  to  eighty-four  months  and  aver- 
aging nearly  four  years.508  In  New  York  State  the  ' '  waiting 
period"  in  employers'  liability  cases  lasts  from  six  months 
to  six  years,  with  a  marked  tendency  toward  the  higher 
figure  in  populous  centers  where  work  accidents  are  most 
numerous  and  court  calendars  most  crowded.509 

In  individual  cases  the  delay  is  indefinitely  greater.  In 
Cook  County,  Illinois,  a  switchman  who  lost  a  leg  in  October, 
1905,  recovered  $200  in  December,  1908.  A  steel  worker, 
blinded  in  November,  1907,  settled  his  claim  out  of  court  in 
May,  1910.  A  switchman  who  had  both  legs  amputated  in 
November,  1903,  had  his  suit  pending  in  November,  1910. 
Of  forty-seven  court  cases  examined  in  that  State,  eleven 
were  still  pending  after  intervals  ranging  from  three  to 
seven  years.510 

In  an  Iowa  case  it  required  six  years'  time,  four  juries, 
and  four  appeals  to  the  Supreme  Court  to  determine  a  car- 
penter's right  to  indemnity.511  The  claim  of  a  railway 
brakeman  for  injuries  sustained  in  Appanoose  County, 
Iowa,  though  diligently  prosecuted  through  successive 
courts,  only  reached  final  decision  twelve  years  after  the 
accident  occurred.512 

"With  all  this  deliberateness  the  courts  might  fairly  be 
expected  to  apply  their  own  doctrines  with  some  approach  to 
exactness  and  equality,  according  like  treatment  to  like 


80  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

cases.  In  point  of  fact,  however,  employers'  liability  ad- 
judication can  only  be  likened  to  a  lottery.  The  utterly  hap- 
hazard operation  of  this  branch  of  the  law  has  been  noted 
by  all  investigators  of  the  subject 513  and  may  be  demon- 
strated from  the  court  records  of  any  industrial  community. 
The  dependents  of  nineteen  men  killed  by  ''defective  ma- 
chinery, ways  or  works",  in  Cook  County,  Illinois,  received 
$30,105  in  the  way  of  indemnity ;  but  the  families  of  nine  of 
these  men  got  $22,388  and  the  families  of  the  remaining 
ten  $7,767.514  The  total  compensation  for  forty-seven  fatal 
railway  accidents  in  Erie  County,  New  York,  was  $45,824.52, 
whereof  $19,351  went  to  two  families.515  Of  six  men  totally 
disabled  for  life  in  Minnesota  one  received  $150,  one  $175, 
one  $4,500,  and  three  got  nothing.516  Two  railway  switch- 
men, each  of  whom  had  lost  both  legs  in  the  service,  re- 
covered respectively  $17,619,  and  $2,138.517  Of  38  persons 
partially  incapacitated  for  life  in  "Wayne  County,  Michigan, 
19  received  nothing  and  7  were  paid  more  than  three-fourths 
of  the  total  amount  recovered.518 

An  indemnity  system  which  tediously  grinds  out  such 
results  as  these  is  no  better  than  a  gamble  —  "a  gamble 
which  awards  a  few  prizes  to  injured  persons  and  deludes 
all  other  injured  persons  into  thinking  they  are  going  to 
draw  prizes,  too,  when,  as  a  matter  of  fact,  they  are  going 
to  draw  blanks;  a  gamble  which  makes  the  employer  pay 
preposterous  sums  to  certain  people  and  so  prevents  him 
from  paying  reasonable  sums  to  all.  It  is  on  the  same  level 
as  faro."  519 

What  the  existing  law  of  Iowa  at  its  best  secures  to  the 
injured  workman  is  "a  right  to  retain  a  lawyer,  spend  two 
months  on  the  pleadings,  watch  his  case  from  six  months 
to  two  years  on  a  calendar  and  then  undergo  the  lottery  of 
a  jury  trial  with  a  technical  system  of  law  and  rules  of  evi- 
dence, and  beyond  that,  appeals  and  perhaps  reversals  on 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    81 

questions  that  do  not  go  to  the  merits.     ...     If  he  wins, 
he  wins  months  after  his  most  urgent  need  is  over."  '-" 

Such  delay  and  uncertainty  are  not  merely  a  hardship 
to  the  particular  litigants  involved;  they  strongly  tend  to 
reduce  the  average  recovery  in  employers'  liability  cases. 
The  sufferers  from  work  accidents  are  nearly  always  neces- 
sitous and  often  are  destitute.  They  must  have  immediate 
relief.  They  know  that  immediate  relief  through  the  courts 
is  out  of  the  question,  and  ultimate  relief  highly  uncertain. 
They  have  every  inducement,  therefore,  to  accept  whatever 
settlement  is  offered  by  the  claim  agent  of  the  employer  or 
of  the  liability  insurance  company,  and  they  frequently  sign 
releases  for  absurdly  inadequate  amounts. 

WASTEFULNESS  OF  THE  SYSTEM 

The  benefits  accruing  to  workmen  from  the  existing  lia- 
bility law  are  small  enough,  but  the  burden  imposed  by  it 
upon  employers  is  by  no  means  light.  This  result  is  due 
rather  to  the  wastefulness  of  the  indemnity  system  than  to 
the  indemnities  actually  paid. 

Litigious  justice  is  necessarily  wasteful,  for  success  in 
litigation  often  depends  more  upon  the  skill  or  unscrupu- 
lousness  of  the  attorneys  employed  than  upon  the  legal 
merits  of  the  claims  advanced  or  opposed.521  But  the  cost 
of  employers'  liability  suits  is  increased  by  the  very  poverty 
of  the  claimants  for  whose  redress  the  law  ostensibly  ex- 
ists. Having  no  resources  of  their  own,  these  plaintiffs  can 
only  secure  counsel  upon  contingent  fees.  Since  the  court 
costs  in  unsuccessful  suits  —  about  one-half  of  the  whole 
number  of  such  actions  brought 522  —  must  be  paid  by  the 
attorneys  themselves,  the  fees  in  successful  cases  must  be 
large  enough  to  recoup  these  losses  and  remunerate  counsel 
for  time  and  labor  spent  in  winning  and  losing  cases  alike. 
Accordingly,  of  the  damages  awarded  by  courts,  from  one- 
fourth  to  one-half  are  pocketed  by  counsel  for  p3aintiffs.523 


82  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

The  contingent-fee  system  and  the  uncertainty  of  the  law 
further  multiply  waste  by  multiplying  litigation.  The  spec- 
tacular damages  occasionally  awarded  by  juries  and  af- 
firmed by  courts  of  last  resort  act  like  the  few  high  prizes 
of  a  lottery,  tempting  claimants  to  bring  suits  on  the  chance 
of  recovering  what,  in  their  eyes,  amounts  to  a  fortune. 
This  they  are  all  the  readier  to  do  since,  having  no  pecuniary 
responsibility,  a  losing  suit  costs  them  nothing.  Personal 
liability  lawyers  take  shrewd  advantage  of  the  gambling- 
instinct  thus  invoked,  encouraging  claimants  to  sue  no  mat- 
ter what  the  legal  merits  of  their  claims.  Employers  fre- 
quently compromise  such  suits  rather  than  incur  the  heavy 
expense  of  even  a  successful  defense  —  and  the  enterprising 
attorney  pockets  a  liberal  share  of  the  amount  paid  in  set- 
tlement. In  this  way  has  grown  up  a  regular  profession  of 
''ambulance  chasers",  who,  personally  or  by  " runners", 
pursue  the  wounded  or  the  family  of  the  slain,  soliciting 
permission  to  bring  suit,  and  who  sometimes  anticipate  the 
visit  of  the  claim  agent  himself.524 

The  enormous  waste  entailed  by  such  a  system  of  admin- 
istering "justice"  is  well  shown  by  the  experience  of  em- 
ployers in  the  State  of  New  York.  In  1907  it  appears  that 
327  firms  in  that  State  paid  out  on  account  of  work  accidents 
$255,153.17,  which  was  distributed  as  follows :  — 

TABLE  I525 

Employers'  attorneys,  court  costs  and  claim  de- 
partments          $  14,557.24 

Profits  and  expenses  of  employers'  liability  in- 
surance companies  .... 

Plaintiffs'  attorneys  and  court  costs  . 

To  claimants,  in  settlements  and  damages 

To  employees'  benefit  associations 

Medical,  hospital,  and  funeral  expenses 

Aggregate  waste  ..... 

Total  received  by  injured  workmen  and  their 

dependents 143,504.01  or  56% 


73,338.00 
23,753.92 
80,888.88 
13,365.01 
49,250.12 
111,649.16  or  44% 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    83 

That  is  to  say,  of  every  $100  paid  out  by  these  employing 
firms  on  account  of  work  accidents  but  $56  reached  the  in- 
jured workmen  and  their  dependents.  But  this  showing  is 
unduly  favorable  to  the  law,  for  at  least  $50,000,  or  one-fifth 
of  the  total  amount  considered,  was  voluntarily  paid  by  em- 
ployers in  contributions  to  relief  associations  in  medical 
expenses,  and  the  like,  outside  the  law.  A  fairer  test  of 
employers'  liability  is  afforded  by  the  $192,538  paid  by  these 
same  employers  as  the  result  of  law  suits  or  to  avoid  law 
suits,  whereof  only  $80,888,  or  forty-two  per  cent,  reached 
the  beneficiaries.526 

The  percentage  of  waste  is  noticeably  higher  where  the 
employer  resorts  to  liability  insurance.  Ten  companies 
writing  such  insurance  made  the  following  record  in  three 
years '  time :  — 

TABLE  II527 

Collected  from  employers $23,523,585 

Absorbed  by  companies,  in  profits  and  expenses      .  14,963,790 

Received  by  plaintiffs'  attorneys,  (about)       .         .  1,900,000 

Received  by  injured  workmen  or  their   dependents, 

(about) 6,660,000 

In  other  words,  of  every  $100  paid  out  by  employers  for 
protection  against  liability  to  their  injured  workmen,  $28 
is  paid  to  those  workmen ;  $8  goes  to  the  attorneys  who  aid 
them  in  recovering  this  amount ;  and  $63  goes  to  attorneys 
and  claim  agents  whose  business  it  is  to  defeat  the  claims  of 
the  injured,  to  the  costs  of  soliciting  liability  insurance,  to 
the  expenses  of  administration,  and  to  the  profits  of  the  in- 
suring companies. 

Iowa  employers,  during  the  ten  years  from  1902  to  1912, 
paid  for  liability  insurance  $1,592,770,  whereof  $814,037,  or 
fifty-one  per  cent,  was  expended  in  settlement  of  claims.528 
There  are  no  records  to  show  how  much  of  the  last-men- 
tioned sum  reached  the  ultimate  beneficiaries,  but  if  New 
York  experience  is  any  guide  the  actual  indemnities  could 
not   have   much   exceeded   $600,000.      Employers'    annual 


84  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

premiums  in  this  State  are  now  close  to  $300,000,  and  the 
annual  waste  must  be  near  two-thirds  of  this  amount. 

And  yet,  for  all  its  wastefulness  liability  insurance  is  a 
necessity  for  all  but  the  largest  employers.  The  accident 
rate  and  the  cost  of  settling  accident  claims  are  fairly  con- 
stant and  so  calculable  for  a  whole  industry  or  for  a  great 
employing  corporation,  but  they  are  so  variable  as  to  be 
wholly  unpredictable  for  a  single  establishment  of  moderate 
size.  Hence  the  small  employer  can  better  afford  to  pay 
even  excessive  premiums  for  liability  insurance  than  run 
the  risk  of  being  ruined  by  an  exceptional  number  of  acci- 
dents or  by  a  few  very  large  verdicts  against  him.  More- 
over, despite  the  heavy  overhead  charges  the  liability  com- 
panies, with  their  thoroughly  organized  claim  departments 
and  their  highly  specialized  legal  talent,  can  settle  a  given 
aggregate  of  claims  at  less  cost  to  the  defendants,  if  also 
with  less  benefit  to  the  claimants,  than  could  the  employers 
themselves  acting  individually.  Accordingly  this  type  of 
insurance  has  grown  with  the  growth  of  capitalistic  indus- 
try. From  $56,471  in  1902  employers '  liability  premiums  in 
Iowa  rose  to  $280,577  in  1911. 529  Such  a  rate  of  increase 
strongly  indicates  that  liability  insurance  fills  an  economic 
need  under  present  conditions. 

The  waste  of  the  present  accident  indemnity  system  is  not 
adequately  described  by  saying  that  it  takes  from  employers 
at  least  three  dollars  for  every  dollar  that  it  gives  to  injured 
employees  and  their  families.  Employers'  liability  litiga- 
tion imposes  a  heavy  charge  upon  the  State  as  well  as  upon 
employers.  Competent  authorities  estimate  that  such  liti- 
gation employs  one-fifth  of  the  time  of  the  very  expensive 
judicial  machinery  of  New  York  State.530  Adding  this  to 
the  other  items  of  waste  it  appears  probable  that  not  more 
than  one-fourth  of  the  whole  cost  of  employers'  liability  is 
devoted  to  its  social  purpose  of  relieving  the  victims  of  work 
accidents. 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    85 

EFFECT  ON  THE  RELATIONS  OF  EMPLOYERS  AND  EMPLOYEES 

The  system  of  settling  claims  for  accident  indemnity  de- 
scribed in  the  foregoing  sections  is  not  merely  wasteful :  it 
breeds  disharmony  and  ill-will  between  employers  and  em- 
ployees. 

The  small  employer  would  very  often  be  prompted  by 
humanity  and  personal  interest  to  give  generous  relief  to  a 
faithful  workman  injured  in  his  service.  But  this  his  lia- 
bility policy  forbids.  He  can  not  grant  anything  beyond 
first  aid  without  securing  a  waiver  of  further  claims  —  that 
is,  without  driving  a  hard  bargain.  He  commonly  is  re- 
quired, indeed,  to  leave  all  negotiations  to  the  cold-blooded 
claim  agents  of  the  liability  insurance  company,  who  earn 
their  salaries  by  securing  settlements  at  the  smallest  pos- 
sible cost.  For  the  employer  to  provide  a  physician,  or  even 
to  visit  the  injured  man,  might  be  taken  as  an  acknowledg- 
ment of  liability  which  would  embarrass  the  claim  agent  in 
reaching  an  adjustment.  Such  a  policy  is  admittedly  harsh, 
but  practically  it  is  forced  upon  employers  and  liability  com- 
panies alike  by  the  menace  of  costly  damage  suits. 

Large  corporate  employers  usually  maintain  their  own 
claim  departments,  which  commonly  are  managed  on  the 
same  purely  "business"  basis  as  the  like  departments  of 
liability  companies,  and  with  similar  results.  It  is  only 
where  the  employer,  disregarding  his  legal  rights,  indemni- 
fies injuries  through  genuine  "relief  departments"  or 
otherwise,  that  reasonable  satisfaction  is  attained,  not  un- 
der, but  in  spite  of,  the  law.531  And  even  "relief  depart- 
ments" not  infrequently  are  used  as  a  sort  of  liability  in- 
surance, carried  mainly  at  the  expense  of  employees.532 

The  injured  workman  almost  invariably  feels  that  he  has 
a  just  claim  to  compensation.  He  has  shed  his  blood  in  his 
employer's  service  and  he  resents  the  harshness  and,  as  he 
considers  it,  the  injustice  of  the  latter 's  efforts  to  deprive 


86  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

him  of  what  he  believes  to  be  his  deserts.  He  is  the  more 
ready,  accordingly,  to  embrace  the  alluring  hopes  held  out 
by  the  contingent-fee  lawyer.  But  to  file  suit  is  to  provoke 
the  resentment  of  the  employer  who  usually  is  convinced 
that  the  accident  was  not  his  fault  and  that  he  ought  not  in 
justice  to  be  held  in  damages.  To  prosecute  the  claim  is  to 
engender  more  than  the  ordinary  bitterness  of  law-suits, 
for  the  one  party  is  convinced  in  advance  of  the  unfairness 
both  of  the  law  and  the  judge  and  the  other  of  the  prejudice 
of  the  jury. 

The  ill-feeling  thus  engendered  affects  not  alone  the  par- 
ticular workers  injured  but  their  fellows,  both  through  sym- 
pathy with  their  stricken  comrades  and  through  anticipa- 
tion of  the  evil  day  when  they  themselves  may  stand  in  the 
like  case.  The  resultant  antagonism  between  employer  and 
employee  is,  to  employers  at  least,  one  of  the  most  deplor- 
able results  of  the  present  unhappy  system.533 

EFFECT   ON   ACCIDENT   PREVENTION 

The  bill  of  complaints  against  the  existing  system  of  em- 
ployers' liability  already  is  a  long  one;  but  the  most  serious 
count  in  the  indictment  is  yet  to  be  made,  namely,  it  does 
little  or  nothing  to  reduce  the  number  of  work  accidents.  An 
indemnity  system  may  promote  safety  either  by  stimulating 
caution  on  the  part  of  workmen  or  by  making  accident  pre- 
vention greatly  to  the  interest  of  employers.  The  existing 
liability  system  is  ineffective  in  both  of  these  respects. 

Chief  Justice  Shaw  and  those  jurists  who  were  inspired 
by  him  have  often  enough  asserted  that  "the  moral  effect 
of  devolving  these  [work]  risks  upon  the  employees  them- 
selves would  be  to  induce  a  greater  degree  of  caution,  pru- 
dence and  fidelity  than  would  in  all  probability  be  otherwise 
exercised";534  and,  conversely,  that  to  make  the  employer 
unconditionally  liable  for  work  accidents  "would  be  an  en- 
couragement to  the  servant  to  omit  that  diligence  and  cau- 


PRACTICAL  WORKING  OP  EMPLOYERS'  LIABILITY    87 

tion  which  ....  are  a  much  better  security  against 
any  injury  the  servant  may  sustain  ....  than  any 
recourse  against  his  master  for  damages  could  possibly  af- 
ford." 535  But  this  is  arguing  that  men  deliberately  incur 
death  or  mutilation  in  order  that  they  or  their  heirs  may 
sue  for  damages  —  an  argument  which  refutes  itself.530 

Irrespective  of  indemnity,  workmen  have  the  strongest 
possible  incentive  to  care  in  the  instinct  of  self-preservation. 
Such  recklessness  as  they  undeniably  are  guilty  of  springs 
from  temperament,  habit,  haste,  and  over-strain,  not  from 
calculation ;  and  the  corrective  is  to  be  found  in  rigid  disci- 
pline enforced  by  the  employer  rather  than  in  appeals  to 
self-interest. 

Employers,  on  the  other  hand,  are,  as  regards  accident 
prevention,  more  amenable  to  pecuniary  motives.  Not  that 
employers  are  more  mercenary  than  workmen  or  that  the 
former  are  more  often  guilty  of  intent  to  murder  than  the 
latter  of  attempted  suicide;  but  the  preventive  measures 
open  to  employers  call  for  no  change  of  habit  or  dis- 
position; they  require  only  that  a  portion  of  that  acumen 
and  forethought  which  is  now  devoted  to  increased  output 
and  larger  sales  shall  be  directed  to  safer  methods  of  work. 
The  discovery  and  installation  of  safety  devices,  the  in- 
spection of  plant,  materials  and  equipment,  the  framing  of 
working  rules,  and  the  enforcement  of  discipline  with  regard 
to  safety  as  well  as  speed,  necessitate  research  and  experi- 
mentation and  entail  heavy  expenditures.  Such  measures 
may,  in  exceptional  instances,  be  undertaken  from  humani- 
tarian motives,  but  they  are  far  more  certain  of  adoption  if 
accident  prevention  is  made  to  save  employers  more  in  dol- 
lars and  cents  than  it  costs. 

This  is  precisely  what  the  existing  liability  system  fails 
to  accomplish.  The  law  only  requires  ordinary  care,  and 
ordinary  care  may  be  exercised  by  following  the  usual  prac- 
tice of  the  trade.    Hence  so  long  as  a  safety  appliance,  how- 


88  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ever  efficacious,  is  not  in  common  use  no  one  is  legally  ''at 
fault"  for  not  employing  it.  To  install  the  safer  equip- 
ment would  mean  a  large,  certain,  and  immediate  outlay; 
whereas  the  injuries  that  might  be  prevented  by  it  promise, 
at  most,  a  future  and  wholly  problematical  expense.  Ex- 
perience has  accordingly  shown  that  such  safety  devices  as 
automatic  couplers,  air  brakes,  guards  on  machinery,  belt 
shifters,  fire  escapes,  safety  cages,  emergency  exits  from 
mines,  and  countless  others  have  been  adopted  tardily  and 
only  in  consequence  of  penal  legislation  —  not  from  the 
pressure  of  accident  liability.537 

The  unregenerate  fellow-servant  and  assumption  of  risk 
doctrine  (so  far  as  these  still  are  in  force)  even  put  a 
premium  upon  disregard  of  safety,  in  that  reckless  ex- 
posure of  the  lives  of  employees  if  habitually  practiced  and 
constructively  assented  to  saves  expense  while  entailing  no 
increased  liability.  "Great  corporations  finding  that  dili- 
gence and  humanity  only  increased  their  liabilities,  natu- 
rally selected  officers  who  were  careful  not  to  know  too  much 
about  the  faults  of  servants  or  of  implements.  The  loss  of 
life  and  the  amount  of  human  suffering  which  have  ensued 
from  the  want  of  adequate  pressure  upon  the  great  carry- 
ing companies  to  protect  their  servants  from  injury  in  their 
service  have  been  appalling. ' ' 538 

The  failure  of  the  common  law  to  further  the  saving  of 
life  and  limb  is  not  merely  a  conclusion  from  a  priori  argu- 
ments nor  an  inference  of  competent  observers.  Its  impo- 
tence in  this  respect  has  been  demonstrated  by  unimpeach- 
able statistics.  During  the  ten-year  period,  1897-1906,  the 
fatal  accident  rate,  per  10,000  employees,  was  31  in  the  coal 
mines  of  the  United  States  as  against  13  in  those  of  Great 
Britain,  and  25  on  American  as  compared  with  10  on  Ger- 
man railways.539  American  industries,  under  the  common 
law  regime,  kill  and  cripple  two  or  three  times  as  many 
workmen,  relatively  to  the  number  employed,  as  do  the  like 


PRACTICAL  WORKING  OP  EMPLOYERS'  LIABILITY    89 

industries  of  Europe  where  accident  prevention  is  a  busi- 
ness proposition. 

FINAL  ESTIMATE  OF  THE  EXISTING  LAW 

To  recapitulate  the  conclusions  reached  in  the  foregoing 
paragraphs,  the  existing  law  of  employers'  liability  in  Iowa 
(1)  imposes  the  pecuniary  burden  of  work  accidents  mainly 
upon  the  injured  workmen  and  their  families,  (2)  is  exces- 
sively slow,  uncertain,  and  wasteful  in  operation,  (3)  fos- 
ters antagonism  rather  than  good  will  between  employers 
and  their  workmen,  and  (4)  offers  no  adequate  incentive  to 
accident  prevention. 

Enough  has  already  been  said  of  the  patent  inefficiency 
of  the  present  system.  The  existing  law  is  no  less  defective 
when  tested  by  current  standards  of  social  justice.  Since 
work  injuries  are  inevitable  concomitants  of  that  mechani- 
cal industry  which  has  made  modern  civilization  possible 
and  the  products  of  which  are  enjoyed  in  fullest  measure  by 
the  classes  least  exposed  to  its  hazards,  since  the  victims  of 
these  injuries  are  precisely  those  least  able  out  of  their  own 
meagre  incomes  to  provide  against  death  or  disability,  and 
since  the  evils  of  poverty  affect  not  alone  the  families  imme- 
diately concerned  but  the  State  as  well,  enlightened  public 
opinion  is  coming  to  demand  that  those  who  are  crippled  in 
the  production  of  the  community's  wealth  and  the  depend- 
ents of  those  who  are  slain  shall  be  indemnified  by  the 
public  for  whom  they  wrought.540 

Injustice  and  ineptitude  are,  then,  the  outstanding  char- 
acteristics of  the  present  law.  These  defects,  moreover, 
inhere  in  the  basic  principle  of  the  law  itself.  No  system 
which  makes  compensation  to  depend  upon  proof  that  the 
employer  was  "at  fault"  can  provide  indemnity  for  more 
than  a  minor  fraction  of  work  injuries  or  can  avoid  the  un- 
certainty, delay,  waste,  and  bitterness  incident  to  litigation. 
The  most  sweeping  modification  of  the  common  law  will  not 


90  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

reach  the  root  of  the  evil  so  long  as  the  fundamental  prin- 
ciple of  no  liability  without  fault  is  retained.  It  follows  that 
the  present  situation  can  only  be  remedied  by  legislation  on 
radically  different  lines  from  any  hitherto  enacted  in  this 
State. 

The  foregoing  conclusions  are  not  merely  those  of  the 
present  writer:  they  represent  the  concensus  of  opinion 
among  all  who  have  given  careful  thought  to  the  subject. 
The  Employers'  Liability  Commission  of  the  State  of  New 
York,  after  the  most  thorough  and  extensive  investigation 
yet  made  into  the  working  of  employers'  liability  in  the 
United  States,  concluded  that  "the  present  legal  system  of 
employers'  liability  in  force  in  this  State  [New  York]  (and 
practically  everywhere  else  in  the  United  States)  .... 
is  fundamentally  wrong  and  unwise  and  needs  radical 
change."541  A  similar  commission  in  Illinois  found  the 
present  system  "unjust,  haphazard,  inadequate  and  waste- 
ful, the  cause  of  enormous  suffering,  of  much  disrespect 
for  law  and  a  badly  distributed  burden  upon  society. ' ' 542 
The  National  Association  of  Manufacturers,  who,  if  anyone, 
should  favor  the  existing  law,  have  recorded  their  convic- 
tion that  it  is  "unsatisfactory,  wasteful,  slow  in  operation 
and  antagonistic  to  harmonious  relations  between  em- 
ployers and  wage-workers. ' ' 543  The  semi-official  organ  of 
social  workers  has  editorially  declared  that  the  common  law, 
in  this  respect,  is  opposed  to  "economics,  philosophy  and 
morals."544  Former  President  Roosevelt  has  pronounced 
it  "neither  just,  expedient  nor  humane".545  Law  writers 
and  teachers  of  law  in  leading  universities  are  all  but  unani- 
mous in  condemnation  of  the  rules  which  it  is  their  business 
to  expound.546  Most  significant  of  all,  the  law  of  negligence 
as  a  basis  of  indemnifying  work  accidents  has  been  "dis- 
carded as  barbarous  and  out  of  date"547  by  nearly  all  na- 
tions except  our  own.548 

In  lieu  of  the  discredited  law  of  negligence  most  foreign 


PRACTICAL  WORKING  OF  EMPLOYERS'  LIABILITY    91 

countries  have  provided  indemnity  systems  which  are 
speedy,  certain,  and  economical  in  operation  and  which 
measurably  realize  current  ideals  of  social  justice.  Even  a 
brief  survey  of  some  of  these  foreign  systems  may  be  ex- 
pected to  throw  some  light  upon  what  is  desirable  and  pos- 
sible in  Iowa. 


WORK  ACCIDENT  INDEMNITY  ABROAD 

Indemnity  for  work  accidents,  almost  everywhere  outside 
the  United  States,  is  based  on  the  theory  of  occupational 
risks.  It  will  be  convenient,  therefore,  to  preface  the  actual 
analysis  of  foreign  indemnity  systems  with  a  short  state- 
ment of  this  underlying  principle.549 

The  theory  of  occupational  risks  may  be  summarized  as 
follows:  (1)  The  consumers  of  economic  goods  should 
bear  all  the  money  costs  incurred  in  the  production  thereof. 
(2)  Among  those  costs  are  to  be  reckoned  the  pecuniary 
losses  from  deaths  and  injuries  occurring  in  the  regular 
course  of  production  —  the  expenses  of  burial  and  medical 
attendance  for  the  dead  and  the  injured  and  the  wages  lost 
to  workmen  and  their  dependents  through  the  death  or  dis- 
ability of  bread-winners.  (3)  Wage-earners,  if  forced  to 
bear  these  losses  in  the  first  instance,  are  unable  to  recoup 
themselves  in  the  form  of  compensatory  wages  or  otherwise. 
(4)  The  pecuniary  cost  of  work  accidents  ought,  therefore, 
to  be  treated  like  other  costs  of  production  under  the  entre- 
preneur system  —  that  is,  borne  by  the  employers  in  the 
first  instance  and  by  them  shifted  in  the  form  of  enhanced 
price  upon  the  consumers  of  those  goods  in  the  production 
of  which  the  injuries  were  sustained.550 

Two  general  methods  of  giving  effect  to  the  theory  of  oc- 
cupational risks  are  in  use,  and  are  commonly  known  as  the 
"Compensation  Plan"  and  the  ''Insurance  Plan".  Many 
variants  of  both  systems  exist,  but  a  summary  statement 
will  make  clear  the  main  features  of  each. 

By  the  simple  compensation  plan  each  employer  is  held 

92 


WORK  ACCIDENT  INDEMNITY  ABROAD  93 

individually  responsible  for  injuries  sustained  in  his  em- 
ployment, though  he  is  permitted  and  even  encouraged  to 
insure  his  risks.  This  is  the  system  of  Belgium,  Denmark, 
France,  Great  Britain,  Greece,  Russia,  Spain,  Sweden,  and 
most  of  the  self-governing  British  colonies.  Insurance  in  an 
authorized  company  usually  relieves  the  employer  of  per- 
sonal liability.  Not  content  with  this  encouragement  of 
insurance,  Belgium  and  France  maintain  guarantee  funds 
to  secure  compensations  due  from  uninsured  employers; 
and  Belgium  requires  the  capitalized  value  of  uninsured 
death  or  permanent  disability  benefits  to  be  deposited  with 
the  State.  Finland,  Italy,  and  the  Netherlands  require  in- 
surance of  liability,  but  permit  a  choice  of  insurers.  To 
lessen  the  burden  upon  employers,  the  Netherlands  and 
Sweden  conduct  state  insurance  departments  and  Italy  has 
created  a  national  cooperative  insurance  institute  —  all  of 
which  operate  side  by  side  with  private  liability  companies. 
The  insurance  plan  differs  from  the  foregoing  in  making 
the  employers  of  each  industrial  group  collectively  respon- 
sible for  the  compensation  of  injuries  occurring  in  that 
group.  This  is  the  method  adopted  by  Austria,  Germany, 
Hungary,  Luxemburg,  Norway,  and  Switzerland.  In  Aus- 
tria and  the  German  Empire  indemnities  are  provided  by 
employers'  mutual  associations  organized  industry-wise. 
In  Hungary,  Luxemburg,  and  Switzerland,  owing  to  the 
smallness  of  most  industrial  groups,  single  national  asso- 
ciations are  provided.  In  most  of  these  countries  the  rau- 
tuals  are  self-governing  bodies  under  state  supervision,  but 
the  Administrative  Council  (Verwaltungsrath)  of  the  Swiss 
Accident  Insurance  Institution  (Unfallversicherungsans- 
talt)  is  named  by  the  Federal  Council  upon  the  nomination 
of  the  trade  organizations  (Berufsverban.de).651  Part  of 
the  administrative  expenses  is  in  every  case  borne  by  the 
state.  Moreover,  the  Swiss  government  donated  $1,000,000 
toward  the  reserve  fund  of  the  Institute.    In  Norway,  last- 


94  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ly,  indemnity  insurance  is  conducted  directly  and  solely  by 
the  state. 

The  compensation  and  insurance  plans  having  been  de- 
veloped most  typically  in  Great  Britain  and  the  German 
Empire,  an  outline  of  accident  indemnity  in  these  two  coun- 
tries will  sufficiently  serve  every  present  purpose. 

WORKMEN'S  COMPENSATION  IN  GREAT  BRITAIN 

The  British  "Workmen's  Compensation  Act  of  1906  ap- 
plies to  all  employments  and  to  all  employees,  except  non- 
manual  workers  whose  wages  exceed  250  pounds  per  annum 
and  persons  casually  employed  otherwise  than  in  the  course 
of  trade  or  business ;  and  it  covers  all  injuries  by  accident 
"arising  out  of  and  in  the  course  of  the  employment"  which 
cause  death  or  disable  the  workman  for  at  least  one  week 
from  earning  full  wages  at  the  work  at  which  he  was  em- 
ployed. The  sole  defense  to  a  claim  for  compensation  under 
the  act  is  that  the  injury  was  caused  by  the  "serious  and 
wilful  misconduct ' '  of  the  injured  person,  and  even  this  de- 
fense is  available  only  in  cases  of  temporary  disability. 
Nor  is  "contracting  out"  of  liability  under  the  act  per- 
mitted, unless  the  Registrar  of  Friendly  Societies  certifies 
that  the  employer  has  provided  a  scheme  of  compensation 
not  less  favorable  to  the  workmen  than  the  act  itself  and 
acceptable  to  a  majority  of  the  workmen  affected. 

The  schedule  of  compensation  is  as  follows:  (1)  in  cases 
of  death,  where  there  are  no  dependents,  reasonable  medical 
and  funeral  expenses,  not  to  exceed  10  pounds;  (2)  in  cases 
of  death,  where  there  are  persons  wholly  dependent  on  the 
deceased,  three  years'  wages,  but  not  less  than  150  pounds 
nor  more  than  300  pounds ;  (3)  in  cases  of  death  where  there 
are  none  but  partial  dependents,  payments  proportional  to 
such  partial  dependency ;  (4)  in  cases  of  total  disability,  one- 
half  of  weekly  wages  (full  wages  if  less  than  10  shillings  per 
week)  during  disability;  and  (5)  in  cases  of  partial  disabil- 


WORK  ACCIDENT  INDEMNITY  ABROAD  95 

ity,  one-half  of  the  loss  of  earning  capacity.  No  compensa- 
tion is  paid  for  disability  lasting  less  than  one  week,  nor  for 
the  first  week  where  incapacity  does  not  last  more  than  two 
weeks.  In  other  cases  compensation  dates  from  the  time  of 
the  accident.  To  guard  against  simulation  claimants  are 
required  to  submit  themselves  for  examination  to  a  physi- 
cian selected  and  paid  by  the  employer  or  to  a  medical 
referee  appointed  by  the  county  court. 

Disputes  under  the  act  may  be  adjudicated  (1)  by  an 
arbitration  committee  representing  the  employer  and  his 
employees,  (2)  by  an  arbitrator  agreed  on  by  the  parties, 
(3)  by  a  county  judge,  or  (4)  by  an  arbitrator  appointed  by 
him.  Findings  of  fact,  whether  by  an  arbitrator  or  by  a 
county  judge,  are  final.  On  questions  of  law,  appeals  lie  to 
to  the  Court  of  Appeals  and  ultimately  to  the  House  of  Lords. 
In  practice,  nearly  all  claims  are  settled  by  agreement,  only 
one-fifth  of  the  death  claims  and  one-half  of  one  per  cent  of 
the  disability  claims  being  taken  into  court.  The  number 
of  appeals  to  higher  courts  is  likewise  extremely  small. 
Thus  in  1908  it  appears  that  328,957  injuries  were  compen- 
sated; 5358  disputes  were  referred  to  county  courts;  112 
cases  were  carried  to  the  Court  of  Appeals ;  and  3  cases  were 
taken  to  the  House  of  Lords.  Yet  the  county  courts,  al- 
though they  adjudicate  relatively  few  claims,  perform  im- 
portant administrative  functions  in  connection  with  the  law. 
Death  benefits  are  paid  into  and  administered  by  these 
courts  and  all  agreements  for  the  commutation  of  weekly 
payments  into  lump  sums  must  be  approved  and  registered 
by  the  same  tribunals. 

A  peculiar  feature  of  the  British  system  is  the  survival  of 
the  earlier  employers'  liability  act  alongside  of  the  com- 
pensation law,  so  that  an  injured  workman  may  make  his 
claim  under  the  latter  and  also  bring  suit  under  the  former, 
though  double  recovery  is  not  permitted.     The  number  of 


96  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

actions  brought  under  the  employers'  liability  act  is,  how- 
ever, very  small  and  is  steadily  diminishing. 

WORK  ACCIDENT  INSURANCE  IN  THE  GERMAN  EMPIRE  552 

The  German  plan  differs  from  the  British  in  substituting 
compulsory  mutual  insurance  for  individual  liability  of  em- 
ployers and  in  requiring  contributions  from  the  workmen. 
Like  the  British  Act  of  1906,  the  German  plan  covers  all 
employments,  includes  all  manual  workmen  and  other  low- 
paid  employees  (those  who  receive  in  wages  or  salary  less 
than  5000  marks  per  annum),  applies  to  substantially  all 
industrial  accidents  of  any  consequence,  and  bases  compen- 
sation upon  the  wages  of  the  injured  person. 

The  benefits  provided  are:  (1)  medical  and  surgical  at- 
tendance, medicines  and  therapeutic  appliances  and  hos- 
pital care  where  needed,  (2)  a  monthly  pension  to  injured 
workmen  continuing  during  disability  and  equal  in  cases  of 
total  disability  to  two-thirds  of  the  average  wages  earned 
during  the  year  preceding  the  accident,  and  in  cases  of  par- 
tial disability  to  two-thirds  of  the  loss  of  earning  capacity 
imputable  to  the  accident  (full  wages  are  allowed  during 
disability  if  the  constant  attendance  of  another  person  is 
required) ;  (3)  a  burial  allowance  in  all  cases  of  death  re- 
sulting from  work  accidents ;  and  (4)  a  pension  to  the  sur- 
viving dependents  of  a  workman  who  dies  as  the  result  of  a 
work  accident,  not  exceeding  one-fifth  of  the  average  earn- 
ings of  the  deceased  to  any  one  dependent,  or  three-fifths 
thereof  to  all  dependents. 

The  foregoing  pensions  are  regarded,  by  the  government 
at  least,  as  full  indemnity  for  the  pecuniary  losses  incurred 
by  workmen  on  account  of  industrial  injuries.  The  disabled 
workman  at  two-thirds  pay  is  thought  to  be  as  well  off,  finan- 
cially, as  he  was  when  at  work,  regard  being  had  to  the 
ordinary  lay-offs  and  to  the  extra  cost  of  tools,  working- 
clothes,  street-car  fare,  and  the  like,  which  the  invalid  is 


WORK  ACCIDENT  INDEMNITY  ABROAD  97 

spared.  Similarly,  forty  per  cent  of  full  wages  is  consid- 
ered no  more  than  a  fair  deduction  from  the  family  income 
for  the  personal  expenses  of  the  deceased. 

To  provide  these  benefits  employers  are  organized  in- 
dustry-wise in  mutual  accident  insurance  associations  which 
levy  annual  (or  semi-annual  or  quarterly)  assessments 
upon  their  members.  These  assessments  are  a  per  centage 
of  pay  roll  ascertained  by  comparing,  for  the  whole  industry 
and  for  each  distinct  branch,  the  actual  expenditure  on  ac- 
count of  accidents  with  the  aggregate  pay  roll  for  a  period 
of  years  and  taking  the  average  ratio  as  the  basis  for  the 
levy  of  the  current  year.  The  contribution  of  each  employer 
depends,  of  course,  upon  his  average  (computed)  pay  roll 
together  with  his  rating  in  the  risk  tariff  as  thus  construct- 
ed. Where  an  employer  has  men  engaged  in  different 
branches  of  the  same  industry  his  rating  is  combined  from 
the  several  partial  ratings.  And  where  he  is  engaged  in 
more  than  one  industry  he  may  belong  to  more  than  one 
association.  A  rating  higher  than  the  normal  may  be  im- 
posed upon  any  given  establishment  for  failure  to  comply 
with  the  accident  prevention  regulations  prescribed  by  the 
association. 

Since  under  the  German  plan  indemnities  are  paid,  not 
in  lump  sums  but  in  the  form  of  pensions  terminable  only 
by  the  death  of  the  recipient  or  by  the  cessation  of  inca- 
pacity or  dependence,  the  real  cost  of  indemnity  in  any  given 
year  is  the  capitalized  value  of  all  pensions  due  to  accidents 
occurring  in  that  year.  On  the  other  hand,  the  expenditure 
of  a  given  year  includes  all  annuities  accrued  from  past 
years  that  are  still  in  force.  If,  then,  assessments  were 
based  on  the  present  worth  of  current  liabilities  the  rates 
would  be  high  from  the  very  outset  but  would  not  increase 
except  for  changes  in  the  scheme  of  compensation  or  in  acci- 
dent frequency.  The  employers,  however,  have  preferred 
to  base  assessments  on  current  expenditure  so  that  the  rates 


98  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

are  low  at  first  but  increase  gradually  with  the  accumulation 
of  pensions  accrued  in  past  years. 

The  results  of  this  mode  of  assessment  are:  (1)  that  the 
maximum  cost  will  be  higher  than  the  average  cost  under 
an  adequate  actuarial  reserve  plan;  (2)  that  a  part  of  the 
costs  of  current  business  enterprise  is  thrown  upon  employ- 
ers of  the  future;  (3)  that  new  firms  are  burdened  with  the 
cost  of  the  past  accidents  of  old  establishments;  (4)  that 
surviving  firms  must  meet  the  deferred  payments  of  con- 
cerns that  have  failed  or  withdrawn  from  business. 

These  criticisms,  however,  are  fully  met,  in  the  view  of 
German  employers,  by  the  following  considerations: —  (1) 
To  accumulate  adequate  reserves,  securely  invested,  would 
tie  up  a  vast  capital,  or  at  least  withdraw  it  from  those  in- 
dustries which  are  most  rapidly  expanding.  (2)  A  grad- 
ually increasing  cost  can  be  more  readily  incorporated  in 
the  price  of  the  product  than  a  great  and  sudden  increase, 
such  as  would  have  been  necessary  had  the  full  reserve  plan 
been  adopted  at  the  inauguration  of  the  insurance  scheme. 
Hence  employers  of  the  future  will,  in  reality,  be  no  more 
burdened  than  those  of  the  present  since  they  will  be  equally 
able  to  shift  this  item  of  cost  upon  the  consumer.  (3)  At 
any  given  time,  the  accident  insurance  cost  of  a  particular- 
industry  is  a  definite  known  charge  which  new  firms  must 
reckon  with,  as  with  all  other  known  costs,  in  deciding  wheth- 
er to  enter  the  business.  (4)  A  reserve  is  unnecessary  to  in- 
sure the  solvency  of  the  associations,  since  the  accident  liabil- 
ities of  an  industry  are  a  lien  against  the  assets  of  all  the  em- 
ployers engaged  therein.  Membership  in  the  appropriate  as- 
sociation being  compulsory  the  funds  needed  to  meet  current 
liabilities  can  be  raised  at  any  time.553 

But,  while  yielding  in  large  measure  to  the  views  of  em- 
ployers, the  German  government  has  insisted  upon  some 
reserves  both  to  assure  ultimate  solvency  and  partially  to 
offset  the  effects  of  the  current  expenditure  assessment  plan. 


WORK  ACCIDENT  INDEMNITY  ABROAD  99 

The  reserve  funds  of  the  industrial  associations  amounted 
to  $61,000,000  in  1908  as  compared  with  receipts  of  $47,000,- 
000  during  that  year.  About  $4,000,000  are  annually  added 
to  the  reserves,  and  it  is  expected  that  by  1921  the  interest 
on  these  funds  will,  in  the  older  associations,  counterbalance 
the  increase  of  accrued  pensions  and  secure  reasonable 
stability  of  rates. 

The  immediate  administration  of  the  accident  indemnity 
system  is  in  the  hands  of  employers'  mutual  insurance  asso- 
ciations, of  which  there  are  66  for  industrial  and  48  for 
agricultural  establishments,  so  constituted  that  each  asso- 
ciation is  thoroughly  homogenous  as  to  the  character  of 
the  establishments  included  in  it.  Most  of  the  associations 
cover  the  whole  empire :  only  those  for  iron  and  steel,  other 
metals,  textiles,  wood-working,  and  the  building  trades  are 
divided  territorially.  The  associations  are  bodies  corpo- 
rate, have  all  the  rights  of  persons,  are  governed  by  consti- 
tutions adopted  by  a  general  meeting  of  the  members,  and 
are  managed  by  elected  boards  of  directors  and  periodical 
general  meetings. 

The  most  noteworthy  feature  of  this  plan  is  that  under  it 
employers  manage  their  own  insurance.  Not  only  is  mem- 
bership in  the  appropriate  association  compulsor}-  upon  all 
employers,  but  no  other  form  of  liability  insurance  is  per- 
mitted by  law.  Private  insurance  companies  are  entirely 
excluded  from  this  field. 

Of  course,  the  associations  are  not  free  to  administer  the 
accident  relief  system  as  they  choose,  but  are,  in  character- 
istic German  fashion,  closely  checked  and  controlled  by  gov- 
ernment officials.  The  chief  supervising  agency  is  the  Im- 
perial Insurance  Office,  which  is  both  the  administrative  head 
of  workmen's  insurance  and  the  court  of  last  resort  in  con- 
troversies respecting  the  accident  and  the  invalidity  insur- 
ance. This  institution  is  organized  in  the  form  of  a  Senate 
with  a  president  and  other  permanent  members  appointed 


100  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

for  life  by  the  Emperor  upon  the  nomination  of  the  Bundes- 
rath,  six  temporary  members  chosen  by  the  Bundesrath,  six 
five-year  members  representing  the  accident  insurance  as- 
sociations, and  six  five-year  members  elected  by  insured 
workmen  from  the  associate  judges  of  the  insurance  arbi- 
tration courts. 

The  Imperial  Insurance  Office  is  charged  with  the  expla- 
nation of  the  insurance  law,  the  approval  of  constitutions 
of  accident  associations,  of  risk  tariffs,  and  of  rules  for 
accident  prevention,  the  supervision  of  the  associations, 
the  auditing  of  accounts,  the  settlement  of  controversies 
relating  to  risk  ratings,  assessments,  premiums,  penalties, 
and  the  like,  and  the  determination  of  appeals  from  the 
arbitration  courts. 

In  addition  to  the  Imperial  Insurance  Office  there  are 
State  insurance  offices  in  Bavaria,  Saxony,  Wiirtemburg, 
Baden,  Hesse,  Mecklenberg-Schwerin,  Mecklenberg-Stre- 
litz,  and  Reuss-Greitz,  which  discharge  similar  functions 
but  the  jurisdiction  of  which  is  limited  to  associations  com- 
posed wholly  of  firms  located  in  their  respective  States,  and 
to  State  public  works  departments. 

Claims  for  accident  indemnity  are  passed  upon,  in  the 
first  instance,  by  the  executive  committee  of  the  local  sec- 
tion of  the  accident  insurance  association.  Disputes  are 
referred  to  an  arbitration  court  composed  of  equal  num- 
bers of  employers  and  insured  persons  with  a  government 
official  as  umpire.  Appeals  lie  from  this  court  to  the  Im- 
perial Insurance  Office.  The  costs  of  such  trials  are  small 
as  compared  with  court  costs  in  the  United  States  and  are 
borne  in  part  by  the  associations  and  in  part  by  the  govern- 
ment. In  practice  about  eighteen  out  of  every  one  hundred 
cases  are  carried  from  the  committees  of  the  insurance  as- 
sociations to  the  arbitration  courts  and,  about  one-sixth  of 
the  decisions  rendered  by  these  courts  (or  about  3  per  cent 
of  all  claims  arising)  are  appealed  to  the  Imperial  Insur- 


WORK  ACCIDENT  INDEMNITY  ABROAD  101 

ance  Office.  In  other  words,  nearly  four-fifths  of  all  acci- 
dent claims  are  finally  disposed  of  by  the  employers'  com- 
mittees, and  the  decisions  of  these  committees  are  affirmed 
in  about  four-fifths  of  the  cases  appealed.  Of  litigation,  in 
the  common  law  sense,  there  is  none. 

The  accident  insurance  system  thus  far  described  ap- 
plies only  to  serious  injuries  —  those  causing  disability  for 
more  than  thirteen  weeks.  For  minor  injuries,  compris- 
ing some  five-sixths  of  all  industrial  casualties,  the  follow- 
ing benefits  are  provided:  (1)  medical  and  surgical  at- 
tendance, medicines,  hospital  care,  and  the  like;  (2)  one- 
half  wages  from  the  third  day  to  the  end  of  the  fourth 
week;  and  (3)  two-thirds  wages  from  the  beginning  of  the 
fifth  to  the  end  of  the  thirteenth  week.  The  increase  in  the 
pension  after  the  fourth  week  is  paid  by  the  employer  in 
whose  establishment  the  injury  occurred.  The  remaining 
benefits  are  paid  out  of  the  sick  insurance  funds,  whereof 
one-third  is  contributed  by  employers  and  two-thirds  by 
the  insured  workmen  and  which  are  jointly  managed  by 
employers  and  employees.  It  is  estimated  that  the  minor 
injuries  provided  for  in  this  way  cause  about  one-sixth  of 
the  total  expenditure  for  industrial  accidents,  so  that  the 
employees  directly  pay  some  eleven  per  cent  (two-thirds  of 
sixteen  per  cent)  of  the  cost  of  accident  indemnity.  Since, 
however,  employers  pay  one-third  of  the  sick  insurance 
premiums,  and  since  accident  relief  represents  but  a  small 
part  of  the  expenditures  of  the  sickness  insurance  funds,  it 
is  believed  that  employees  really  contribute  not  more  than 
eight  per  cent  of  the  whole  cost  of  accident  indemnity.554 

This  contributory  feature  of  the  German  plan  was  adopt- 
ed not  so  much  to  lighten  the  burden  upon  employers,  as 
for  administrative  reasons.  The  accident  insurance  asso- 
ciations must  be  very  large,  both  in  numbers  and  in  terri- 
torial extent,  to  distribute  the  heavy  burden  of  accident 
relief.    Such  organizations  are  at  a  disadvantage  in  admin- 


102  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

istering  the  great  number  of  small  benefits  necessitated  by 
minor  injuries,  and  they  are  also  much  less  efficient  in  de- 
tecting simulation  and  malingering  than  are  small  local 
societies  of  workmen.  The  contributory  principle  also  se- 
cures the  active  cooperation  of  the  workmen's  organization 
in  preventing  minor  accidents. 

COMPARISON  OF  THE  BRITISH  AND  GERMAN  SYSTEMS 

Even  a  cursory  examination  of  the  British  and  German 
indemnity  systems,  such  as  is  contained  in  the  foregoing 
pages,  shows  that  the  latter  is  decidedly  superior  by  every 
test  that  may  fairly  be  applied. 

The  German  insurance  system  does,  while  the  British 
compensation  plan  does  not,  provide  adequate  indemnity  in 
accordance  with  the  principle  of  occupational  risks  already 
expounded.  Not  only  is  the  British  schedule  of  payments 
insufficient  to  make  good  the  wage  loss  from  work  accidents, 
but  the  absence  of  provisions  for  medical  attendance  and 
the  mode  in  which  the  payments  are  made  and  secured  de- 
tract much  from  the  benefits  conferred  upon  injured  work- 
men and  their  families. 

Free  medical  treatment  does  more  than  relieve  the  vic- 
tims of  work  accidents  of  a  heavy  financial  burden:  it  se- 
cures prompt  and  expert  attention  to  every  case.  Both  the 
employers'  associations  and  the  sick  insurance  societies  in 
Germany  have  a  pecuniary  interest  in  restoring  the  earning 
capacity  and  stopping  the  pension  of  the  injured  as  soon  as 
possible.  Accordingly  they  maintain  hospitals,  ambu- 
lances, and  staffs  of  accident  experts,  and  see  to  it  that 
even  cuts  and  bruises,  which  the  workers  themselves  would 
ignore,  are  antiseptically  treated,  thus  forestalling  many 
cases  of  disability.555  In  Great  Britain,  where  workmen 
select  and  pay  their  own  physicians,  minor  injuries  receive 
no  attention  until  they  become  serious  by  infection  or  ag- 
gravation; and  even  serious  cases  are  often  treated  by  half- 


WORK  ACCIDENT  INDEMNITY  ABROAD  103 

baked  general  practitioners  without  special  accident  ex- 
perience. 

All  observers  agree  that  a  monthly  pension  is  a  far  bet- 
ter provision  for  a  workingman's  family  than  a  lump-sum 
payment.  Yet  death  benefits  in  Great  Britain  are  always 
paid  in  lump  and  disability  payments  very  commonly  are 
commuted  into  lump  sums.  To  make  matters  worse  igno- 
rant and  necessitous  claimants  are  sometimes  forced  or  ca- 
joled into  unfair  settlements  by  threats  of  litigation  or  the 
wiles  of  liability  adjusters.  These  abuses  are  only  par- 
tially corrected  by  the  supervision  of  the  county  courts  and 
the  provisions  for  the  purchase  of  annuities. 

The  ultimate  payment  of  all  accident  liabilities  is  practi- 
cally certain  under  the  German  plan,  whereas  insolvency  of 
uninsured  employers  is  by  no  means  rare  in  Great  Britain. 

The  German  plan,  far  better  than  its  rival,  realizes  the 
ideal  that  the  cost  of  work  accidents  should  ultimately  be 
borne  by  the  consumers  of  the  products  that  occasioned  the 
accidents.  This  is  accomplished  by  the  system  of  compul- 
sory employers'  insurance,  whereby  the  cost  of  accident 
indemnity  is  distributed  over  the  whole  industry  and  made 
a  fixed  charge  upon  the  business,  as  regular  and  as  cal- 
culable as  any  other  operating  expense.  In  Great  Britain, 
where  some  employers  insure  their  liability  and  others  do 
not,  there  is  no  such  uniform  distribution,  and  consequent- 
ly no  such  complete  shifting  of  the  burden  of  accident  in- 
demnity. 

The  German  system  is  far  more  economical.  Under  the 
"Workmen's  Compensation  Act,  as  under  the  common  law, 
the  possibility  of  ruinous  losses  obliges  most  employers, 
except  the  very  smallest  and  the  very  largest,  to  insure  in 
private  companies,  with  resultant  waste  and  loss  hardly 
less  than  in  the  United  States.  Advertising,  solicitors'  com- 
missions, and  other  expenses  of  competitive  underwriting, 
unknown  to  the  German  mutuals,  absorb  nearly  one-fifth  of 


104  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  premiums  paid  by  employers  to  the  British  liability 
companies.558  Enterprisers'  profits  are  normally  high  in 
the  one  mode  of  insurance  and  permanently  absent  in  the 
other.  Costs  of  management  and  of  the  investigation  and 
settlement  of  claims  are  much  greater  in  the  case  of  com- 
peting private  companies  than  of  mutual  associations  which 
enjoy  complete  monopolies  in  their  respective  fields,  which 
pay  no  managers'  salaries,  employ  no  adjusters,  and  con- 
duct investigations  through  their  own  members,  the  local 
workmen's  societies  and  the  police  authorities.  Expenses 
of  litigation,  which  are  almost  nil  in  Germany,  continue  to 
be  heavy  in  Great  Britain,  where  the  liability  companies 
seek  not  only  to  defeat  claims  but  to  discourage  claimants 
by  fighting  doubtful  cases.  Moreover,  the  "capitalized  re- 
serve" plan,  necessary  to  secure  the  solvency  of  a  stock 
company  or  a  voluntary  association,  adds  greatly  to  the 
current  cost  of  insurance  in  Great  Britain.  Lastly  the  Ger- 
man government  assumes  a  far  larger  share  of  the  purely 
administrative  expenses  of  accident  indemnity  than  does 
the  British.  The  net  result  is  that  of  every  dollar  paid  in 
premiums  to  the  British  liability  companies  hardly  more 
than  fifty  cents  finally  reaches  the  beneficiaries ; 557  where- 
as of  each  dollar  collected  by  the  German  employers'  asso- 
ciations nearly  eighty-seven  cents  is  ultimately  paid  to  in- 
jured workmen  and  their  dependents.558  In  other  words, 
the  waste  of  the  British  plan  is  four  times  as  great  as  that 
of  the  German  system. 

The  German  plan  is  far  more  effective  in  promoting  acci- 
dent prevention.  The  premium  tariffs  of  the  British  lia- 
bility companies  are  rather  crudely  based  on  occupations 
and  make  little  attempt  to  discriminate  between  establish- 
ments of  the  same  class.  Paying  a  flat  rate,  the  employer 
has  little  incentive  to  prevent  accidents  in  his  own  estab- 
lishment, and,  though  interested  in  reducing  the  trade  risks 
of  all  establishments  in  his  own  class,  he  has  no  means  of  in- 


WORK  ACCIDENT  INDEMNITY  ABROAD  105 

fluencing  his  fellow  employers.  The  insurance  companies 
possess  no  such  equipment  for  the  study  and  enforcement 
of  accident  prevention  as  is  available  to  employers'  asso- 
ciations. The  insurance  companies,  moreover,  are  deterred 
by  the  fear  of  losing  patronage  from  exerting  adequate 
pressure  upon  their  clients.  The  Workmen's  Compensa- 
tion Act  has  had  some  effect  in  stimulating  large  employers, 
who  are  their  own  insurers,  to  adopt  preventive  measures, 
and  it  has  lessened  opposition  to  the  enforcement  of  safety 
laws;  but  its  results  in  both  directions  have  been  disap- 
pointing to  its  advocates.559 

On  the  other  hand,  the  German  system  of  establishment 
risk  tariffs  penalizes  the  careless  and  rewards  the  careful 
employer.  The  associations  not  only  have  a  strong  incen- 
tive to  keep  down  assessments  by  reducing  the  number  of 
accidents,  but,  composed  as  they  are  of  similar  establish- 
ments, they  are  in  a  position  to  devise,  and  to  enforce,  ef- 
fective measures  to  that  end.  In  this  work  of  prevention 
the  associations  are  aided  not  only  by  efficient  government 
inspectors  but  by  the  very  full  and  well-digested  records  of 
the  Imperial  Insurance  Office  —  records  incomparably  su- 
perior to  the  accident  statistics  of  any  other  country.  These 
facts,  together  with  German  thoroughness  and  scientific 
method  in  applying  experience  to  practical  problems,  large- 
ly account  for  the  long  lead  of  the  German  Empire  in  the 
matter  of  accident  prevention. 

Not  all  the  shortcomings  of  the  British  Workmen's  Com- 
pensation Act  are  inherent  in  the  character  of  the  plan  of 
itself.  It  would  be  entirely  practicable,  without  altering 
the  fundamental  features  of  the  law,  to  increase  the  com- 
pensations paid,  to  provide  medical  care  at  the  expense  of 
employers,  to  require  that  all  payments  be  made  in  weekly 
or  monthly  installments,  and  to  make  insurance  of  liability 
obligatory  upon  all  employers.  But  no  private  insurance 
plan  can  rival  the  economy  of  the  German  system  of  com- 


106  WORK  ACCIDENT  INDEMNITY  IN  IOAVA 

pulsory  employers'  insurance  in  homogenous  mutual  asso- 
ciations, or  the  efficiency  of  that  system  in  accident  preven- 
tion. The  great  superiority  of  the  German  system  in  these 
two  vital  particulars  is  recognized  by  all  students  of  acci- 
dent indemnity.560 

In  point  of  economy  the  Insurance  Institution  of  Norway 
is  the  equal  of  the  German  mutuals,  but  it  is  by  no  means  so 
efficient  for  accident  prevention.  A  part  of  its  shortcom- 
ings are  gratuitous,  being  due  to  the  administration  of  in- 
surance and  inspection  by  separate  bureaus  with  no  close 
correlation  between  them.561  "Were  the  two  functions  com- 
bined and  inspectors'  reports  made  the  basis  of  establish- 
ment risk  ratings,  better  results  would  probably  be  attained. 
Still,  no  governmental  department  can  have  the  same  inti- 
mate familiarity  with  working-place  conditions,  nor  the  same 
power  of  discipline  as  are  possessed  by  the  German  mutuals. 


VI 

INDEMNITY  LEGISLATION  IN  THE  UNITED 

STATES 

The  employers'  liability  situation  in  Iowa,  already  de- 
scribed, is  of  a  piece  with  that  of  the  country  at  large,  for 
the  United  States  still  holds  the  unenviable  distinction  of 
maintaining  the  least  enlightened  system  of  accident  in- 
demnity in  Christendom.  Similarly,  the  reform  movement 
which  has  lately  gathered  way  in  our  own  State  is  but  one 
manifestation  of  a  nation-wide  awakening.  Within  the 
space  of  three  years,  commissions  to  investigate  the  ques- 
tion and  recommend  legislation  have  been  appointed  by 
twenty-four  States  and  by  the  Federal  government,562  and 
legislation  on  the  lines  suggested  by  European  experience 
has  been  enacted  in  sixteen  Commonwealths.563  In  the 
single  legislative  year  of  1911  twenty-three  States  564  either 
enacted  statutes  upon  principles  novel  to  American  juris- 
prudence or  created  commissions  to  consider  the  advisabil- 
ity of  such  legislation.  A  compensation  act  is  pending  in 
Congress,  and  the  reports  of  fourteen  State  commissions 
are  to  be  acted  upon  during  the  coming  sessions  of  the  legis- 
latures. 

All  this  activity,  extending  literally  from  Maine  to  Cali- 
fornia, and  from  North  Dakota  to  Texas,  gives  to  the  move- 
ment in  Iowa  a  more  than  local  significance  and  augurs  that 
a  State  which  holds  fast  to  the  common  law  principles  of 
accident  relief  will  shortly  find  itself  out  of  line  with  the 
nation  at  large. 

Since  the  campaign  for  employers'  liability  reform  in 
Iowa  is  thus  seen  to  be  part  of  a  national  movement,  spring- 

107 


108  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ing  from  the  same  causes,  dealing  with  the  same  problems, 
and  subject  to  much  the  same  limitations  as  the  similar 
campaign  in  other  States,  a  review  of  what  has  been  done  or 
attempted  in  these  other  States  may  contribute  to  an  under- 
standing of  what  can  and  should  be  done  in  Iowa. 

The  results  of  the  reform  movement  to  date  (1912)  are: 
(1)  an  awakened  public  interest,  evidenced  in  the  legislative 
activity  above  noted;  (2)  the  reports  of  twelve  commis- 
sions; and  (3)  sixteen  workmen's  compensation  or  insur- 
ance statutes. 

WORK  OF  THE  COMMISSIONS 

The  commissions  which  have  thus  far  reported  are  those 
of  Illinois,  Iowa,  Massachusetts,  Maryland,  Michigan,  Min- 
nesota, New  Jersey,  New  York,  Ohio,  Washington,  Wis- 
consin, and  the  United  States.  The  commissions  still  in 
existence  are  similar  in  powers  and  functions,  so  that  a 
summary  of  the  reports  already  issued  will  sufficiently  illus- 
trate the  work  of  all  the  commissions  that  have  been  created. 

Seven  of  the  commissions  —  those  of  Illinois,  Massachu- 
setts, Michigan,  New  York,  Ohio,  Wisconsin,  and  the  United 
States  —  undertook  original  investigations  into  the  actual 
working  of  the  then  existing  laws.  The  scope  and  manner 
of  these  investigations  is  indicated  by  the  condensed  outline 
here  given. 

Very  imperfect  accident  records  were  obtained  for  Man- 
hattan Borough  and  Erie  County,  New  York;  Cuyahoga 
County,  Ohio ;  Cook  County,  Illinois ;  and  Milwaukee  Coun- 
ty, Wisconsin.  These  records  cover  the  number  of  fatal 
and  serious  accidents  occurring  in  certain  employments 
within  specified  time  limits,  the  wages  of  the  workmen  killed 
or  injured,  the  number  of  dependents,  the  medical  and  fu- 
neral expenses  incurred,  the  compensation  received  from 
employers  (and  from  other  sources  in  the  New  York  in- 
vestigations), the  time  and  mode  of  settlement,  and  the  eco- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  109 

nomic  effects  of  the  accident  upon  the  family.  It  is  not  to 
be  understood  that  all  of  the  inquiries  covered  the  same 
ground  or  that  all  these  facts  were  ascertained  as  to  each 
accident  case  investigated,  but  only  that  each  of  the  fore- 
going points  was  included  in  one  or  more  of  the  investiga- 
tions. 

Similar  data,  still  more  incomplete  but  for  a  much  greater 
number  of  accidents,  were  gathered  by  the  State  bureaus  of 
labor  in  Illinois,  Minnesota,  New  York,  and  Wisconsin,  and 
were  utilized  by  the  commissions  of  these  States. 

The  accident  experience  of  52  large  employers  in  New 
York,  of  120  in  Massachusetts,  and  of  466  in  Michigan  was 
obtained  to  show  the  expenditure  incurred  by  employers  on 
account  of  work  accidents  and  the  proportion  thereof  that 
actually  reached  the  beneficiaries.  The  New  York  and  Min- 
nesota commissions  obtained  similar  data,  on  a  far  greater 
scale,  from  the  principal  casualty  and  employers'  liability 
companies  doing  business  in  those  States.  The  Illinois  com- 
mission examined  the  files  of  leading  personal  injury  law- 
yers to  ascertain  what  proportion  of  the  damages  recovered 
are  absorbed  by  the  fees  of  counsel  for  the  plaintiffs.  The 
New  York  commission  made  use  of  similar  information 
gathered  by  the  State  Department  of  Labor.  The  Federal 
commission  obtained  and  tabulated  the  experience  of  rail- 
road companies  operating  approximately  one-half  of  the 
railway  mileage  of  the  United  States. 

These  investigations  were  hampered  by  the  limited  time 
and  money  at  the  disposal  of  the  commissions,  by  the  wholly 
inadequate  accident  records  of  the  States  in  which  thej^ 
were  conducted,  and  by  the  failure  of  some  of  the  commis- 
sions 565  to  employ  trained  investigators  even  when  the 
funds  to  do  so  were  available.  The  usefulness  of  the  data 
secured  was  further  gratuitously  impaired  by  the  want  of 
intelligent  editing.  The  published  statistics  in  many  cases 
are  neither  classified  nor  adequately  tabulated.    The  tables 


110  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

presented  are  often  not  clearly  explained.  Few  of  the  re- 
ports are  conveniently  indexed,  or  summarized,  or  provided 
with  analytical  tables  of  contents.  Ostensibly  intended  for 
the  use  of  busy  legislators,  most  of  the  reports  are  little  bet- 
ter than  unorganized  magazines  of  facts  from  which  intel- 
ligible information  can  be  collated  only  with  infinite  labor. 

Despite  these  limitations  the  reports  mentioned,  together 
with  those  of  the  Pittsburgh  Survey,  are  altogether  the 
most  authentic  and  considerable  extant  source  of  informa- 
tion on  the  actual  working  of  employers'  liability  in  the 
United  States. 

All  the  commissions,  save  that  of  Washington,  held  public 
hearings,  took  testimony,  and  sent  questionnaires  to  em- 
ployers, labor  union  officers,  lawyers,  judges,  and  others,  not 
so  much  with  a  view  to  discover  the  evils  to  be  remedied  as 
to  test  and  stimulate  public  interest  in  the  proposed  legis- 
lation. 

Seven  commissions  566  reported  on  foreign  systems  of  ac- 
cident indemnity,  not  at  first  hand  but  from  secondary 
sources  and  for  the  purposes  of  obtaining  suggestions  for 
the  measures  they  meant  to  propose  and  of  supporting  their 
own  recommendations  by  the  experience  of  other  countries. 

Since  all  of  the  commissions  proposed  radical  departures 
from  the  existing  legal  system  it  was  deemed  essential  to 
assure  the  legislatures  that  the  recommendations  made 
could  be  enacted  into  law.  Accordingly,  seven  of  the  com- 
missions submitted  briefs,  prepared  by  members  of  the 
commissions  or  by  counsel  employed  for  that  express  pur- 
pose and  covering  the  constitutional  questions  involved. 
The  New  Jersey  commission  sought  to  attain  the  same  end 
by  means  of  a  questionnaire  to  judges  and  prominent  at- 
torneys ;  while  in  Massachusetts  resort  was  had  to  the  happy 
expedient,  impossible  in  other  States,  of  requiring  the  Su- 
preme Court  to  commit  itself  in  advance  of  legislation. 

The  recommendations  made  by  the  several  commissions, 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  111 

and  the  legislative  action  thereon,  are  exhibited  in  the  fol- 
lowing table : 

TABLE  III 

RECOMMENDATIONS  OF  COMMISSIONS 


Commis- 
sions 

Recommendations 

Endorsed   by 

Legislation 

Illinois 

Compensation  bill 
2  Insurance  bills 

Majority  567 

Compensation  Act 

Iowa 

Compensation  bill 

Majority  568 

Maryland 

Various  bills 

Individuals  569 

Permissive  Act 

Massachu- 
setts 

1  Compensation  bill 

Individuals  570 

Insurance  Act 

Michigan 

Compensation  bill 

Entire  Commis- 
sion 

Compensation  Act 

Minnesota 

Compensation  bill 

Majority 

None 

New 
Jersey 

Compensation  bill 

Entire  Commis- 
sion 571 

Compensation  Act 

New  York 

2  Compensation  bills 

Majority  572 

1  Compensation 

Act 
1  Permissive  Act 

Ohio 

Insurance  bill 

Majority  573 

Insurance  Act 

United 
States 

Compensation  bill 

Entire  Commis- 
sion 

None 

Washing- 
ton 

Insurance  bill 

Entire  Commis- 
sion 

Insurance  Act 

Wisconsin 

Compensation  bill 

Entire  Commis- 
sion 

Compensation  Act 

LEGISLATION  ENACTED 

Of  the  sixteen  statutes  thus  far  enacted,  eight  are  based 
upon  the  recommendations  of  investigative  commissions; 
the  rest  were  passed  without  prior  study  by  such  bodies.574 
Five  575  establish  accident  insurance  systems  of  widely  vary- 
ing types ;  the  others  are  compensation  acts  after  the  Brit- 
ish model,  though  differing  from  each  other,  and  from  their 
common  prototype  in  many  particulars.  All  seek  to  provide 
prompt,  certain,  and  definite  indemnity,  irrespective  of  neg- 
ligence, for  all  accidents  occurring  in  the  employments  cov- 


112  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ered,  and  to  secure  the  determination  of  claims,  so  far  as 
possible,  by  non-litigious  proceedings.  The  more  important 
features  of  the  new  legislation  are  shown  in  the  outline  be- 
low, and  in  the  accompanying  tables.  It  will  be  observed 
that  the  compulsory  Workmen's  Compensation  Act  of  New 
York  and  the  Montana  Coal  Miners'  Insurance  Act,  though 
held  invalid  by  the  courts,  are  here  included  for  the  sake  of 
comparison. 

BASIS  OF  RECOVERY 

As  to  injuries  within  their  scope  all  of  the  acts  under  re- 
view give  compensation  irrespective  of  fault.  But  thirteen 
States  make  "gross  negligence",  "wilful  misconduct",  or 
"intention  to  inflict  injury  on  self  or  others"  on  the  part  of 
the  injured  person  a  bar  to  recovery ; 57G  and  eight  grant  ad- 
ditional compensation,  or  additional  rights  of  action,  for 
injuries  caused  by  the  employer's  violation  of  the  safety 
acts  or  by  his  personal  gross  negligence  or  deliberate  inten- 
tion to  cause  the  injury.577 

SCOPE  OF  INDEMNITY  ACTS 

The  statutes  under  review  differ  somewhat  widely  in 
scope,  though  none  is  so  comprehensive  as  most  of  the  Eu- 
ropean systems.  The  Montana  act  is  restricted  to  coal  mine 
workers.578  The  acts  of  Arizona,  Illinois,  Kansas,  Nevada, 
New  Hampshire,  New  York,  and  Washington  are  limited 
to  specified  employments  declared  to  be  especially  hazard- 
ous.579 The  laws  of  Massachusetts,  Michigan,  and  Rhode 
Island  exclude  farm  laborers  and  domestic  servants.580 
The  Ohio  and  Rhode  Island  statutes  apply  only  to  em- 
ployers of  five  or  more  persons ;  and  that  of  Kansas  only  to 
employers  of  fifteen  or  more  workmen.581  Finally,  the  acts 
of  California,  Maryland,  New  Jersey,  and  Wisconsin  extend 
to  all  employments.582  All  employers  of  the  State  and  its 
subdivisions  are  included  in  California,  Michigan,  and  Wis- 
consin, and  in  Washington  if  engaged  in  work  of  an  extra- 


TABLE  IV 

Indemnity  Legislation  in  the  United  States 


1 

1  Year 
State           of 
1  Act 

Character  of 
Plan 

Scope  of  Act 

emi'i.oymknts 
Covered 

Injuries 

COVKUKI> 

Employees 

Included 

Arizona 

1912 

Compulsory 
compensation 

Specified  dangerous 
employments 

All  arising  out 

of  and  in 

course  of 

employment 

All  in  specified 

dangerous 
employments 

California 

1911 

Elective  compensa- 
tion.    Compulsory 
on  State  and  its 
subdivisions 

All 

All  growing 

out  nf 
employment 

All  except  casual 

Illinois 

1911 

Elective 
compensation 

Specified  dangerous 

employments 

employing  at   least 

15   workmen 

All  arising  out 
of  and  in 
course  of 

employment 

All  exposed  to 

necessary  hazards 

of  business. 

casual  excepted 

Kansas 

1911 

Elective 
compensation 

Specified  dangerous 
employments 

All  arising  out 

of  and  in 

course  of 

employment 

All  regularly  engaged 
in  the  business 

Maryland 

1912 

Elective 
insurance 

All 

All  arising  out 

of  and  in 

course  of 

employment 

All  employees 

Massa- 
chusetts 

1911 

Elective 
insurance 

All  except  domestic 
servants  and 
farm  laborers 

All  arising  out 

of  and  in 

course  of 

employment 

All  except  casual 
employees 

Michigan 

1912 

Elective.     Compulsory 
for  State  and  its 
subdivisions.    Com- 
pensation or  insurance 

All  except  domestic 
servants  and 
farm  laborers 

All  arising  out 

of  and  in 

course  of 

employment 

All  but  casual 
employees 

Montana 

1909 

Compulsory 
insurance 

All  in  coal  mines 
and  washers 

All  in  course 
of  employment 

from  causes 
arisingtherein 

All  except  office 
employees 

Nevada 

1911 

Compulsory  for 

employer.    Elective 

for  employee. 

Compensation 

Specified  dangerous 
employments 

All  arising  out 

of  and  in 

course  of 

employment 

All  engaged  in  manual 

or   mechanical 

labor 

New 
Hampshire 

1911 

Elective 
compensation 

Specified  dangerous 
employments 

All  arising  out 

of  and  in 

course  of 

employment 

All  engaged  in 

manual  or 

mechanical  labor 

New 
Jersey 

1911 

Elective 
compensation 

All 

All  arising  out 

of  and  in 

course  of 

employment 

All 

New 
York 

1910 

Compensation.    Com- 
pulsory on  employer, 
elective  for 
employee 

Specified  dangerous 
employments 

All  arising  out 

of  and  in 

course  of 

employment 

All  manual  and 

mechanical  laborers 

in  specified 

employments 

Ohio 

1911 

Elective  for  employer. 
Compulsory  for  employ- 
ee if  employer  elects 
Cooperative  insurance 

AH  establishments 
employing  5  or 
more  workmen 

All  sustained 
in  course  of 
employment 

All 

Rhode 
Island 

1912 

Elective 
compensation 

All  but  domestic  ser- 
vice or  agriculture 

and  employers  of  less 
than    6   workmen 

All  arising  out 

of  and  in 

course  of 

employment 

All   but    casual 

and  those  earning 

over  $1800  annually 

Wash- 
ington 

1911 

Compulsory 
insurance 

Specified  dangerous 
employments 

All  sustained 
in  course  of 
employment 

All  in  listed  employ- 
ments, &  others  when 
emploj  ei  and  work- 
men elect  under  law 

Wis- 
consin 

1911 

Elective.     Compensa- 
tion.    Compulsory  on 
State  and 
municipalities 

All 

All  growing 

out  of 
employment 

All  except  casual 

113 


TABLE 

[V  —  Continued 

State 

Election 

Defenses  Abrogated 

Liabilities 
Abrogated 

By  Employer 

By  Employee 

Arizo- 
na 

Compulsory 

Election  after 
injury 

Common  law  defenses 
abrogated 

Acceptance  of 

compensation 

excludes  other 

liabilities 

Cali- 
fornia 

Affirmative  by 
written  notice. 
Compulsory  on 
public  bodies 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 
act :  assumption  of  risk,  fellow 
servant.     Contributory  neg- 
ligence becomes  comparative 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Illinois 

Presumed  unless 
notice  to 
contrary 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 
act:  assumption  of  risk,  fellow 
servant,    contributory   neg- 
ligence becomes  comparative 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Kansas 

Affirmative  by 
statement 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 

act:  assumption  of  risk,  fellow 

servant,    contributory 

negligence 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Mary- 
laud 

By  contract  with 
employees  filed 
with  Insurance 
Commissioner 

By  contract 
with  employer 

Contract  must  provide  for 

liability  regardless  of 

negligence 

Contract  abrogates 
all  other  liabilities 

Massa- 
chu- 
setts 

Affirmative  by 
written  notice 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 
act:  assumption  of  risk,  fellow 
servant.     Contributory  neg- 
ligence subject  for  jury 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Mich- 
igan 

Affirmative  by 
written  notice 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 

act:  assumption  of  risk,  fellow 

servant  rule,  contributory 

negligence 

Election  under  act 

excludes  all  other 

liabilities 

Mon- 
tana 

Compulsory 

Contribution  com- 
pulsory, damage 
suit  optional 
after  injury 

No  provision 

Acceptance  of  benefit 

releases  employer 

from  all  other 

liabilities 

Nevada 

Compulsory 

Election  after 
injury 

Assumption  of  risk  and  fellow 

servant  rule  abolished. 

Contributory  negligence 

graded  comparatively 

Acceptance  of 

compensation 

excludes  other 

liabilities 

New 
Hamp- 
shire 

Affirmative  by 
notice 

Election  after 
injury 

If  employer  does  not  elect  under 

act:  assumption  of  risk, 

fellow  servant 

Acceptance  of 

compensation 

excludes  other 

liabilities 

New 
Jersey 

Presumed  unless 
notice  to 
contrary 

Presumed  unless 
notice  to  contrary 

If   employer  does   not   elect 

under  act:     assumption  of 

risk,  fellow  servant  rule, 

contributory    negligence 

Election  cancels 

all  other 

liabilities  of 

employer 

New 
York 

Compulsory 

Election  after 
injury 

Not  mentioned 

Application  for  benefit 

under  act  releases 

employer  from  all 

other  liabilities 

Ohio 

Affirmative  by 

paying 

premhims 

Compulsory  if 
employer  elects 

Assumption  of  risk,  fellow 

servant  rule,  and 

contributory  negligence 

abolished 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Rhode 
Island 

Affirmative  by 
written  notice 

Presumed  unless 
notice  to  contrary 

If  employer  does  not  elect  under 

act:  assumption  of  risk,  fellow 

servant  rule,  contributory 

negligence 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

Wash- 
ington 

Compulsory 

Compulsory 

If  employer  default  in  premium 
payments,  workmen  may  main- 
tain action  at  law,  and  assump- 
tion of  risk  and  fellow  servant 
rule  are  abrogated.    Contributo- 
ry negligence  made  comparative 

State  insurance 

benefits  exclude 

all  others 

Wis- 
consin 

Affirmative  by 
notice 

Presumed  unless 

notice  to  contrary. 

Compulsory  on 

public  employees 

If  employer  does  not  elect  under 

act:  assumption  of  risk, 

fellow  servant 

Election  under  act 

cancels  all  other 

liabilities  of 

employer 

114 


TABLE  IV  — Continued 


State 


Gross  Neglioence  oe 
Wilful  Misconduct 


Funds  Pro- 
vided BY 


Employer's  Vol- 
i'ntaev  Relief 


Adminis- 
tration 


Of  Employer 


Of  Employee 


Arizona     No  provision 


No  provision 


Employer 


Valid  if  not 

less  favorable 

to  employee 

than  act 


Attorney 
General 


Cali- 
fornia 


Gives  employee 

option  of 

damage  suit 


Forfeits 
compensation 


Employer 


Valid  but 

benefits  are  in 

addition  to  those 

un dor  act 


Industrial 

Accident 

Board 


Illinois 


Gives  employee 

option  of 

damage  suit 


Forfeits 
compensation 


Employer 


Kansas 


Gives  employee 

option  of 

damage  suit 


Valid  if  not 

less  favorable 

to  employee 

than  act 


Forfeits 
compensation 


Employer 


Valid  if  as  much  as 
benefit  covered  by  em- 
ployee's contribution 
plus  benefit  under  act 


Mary- 
land 


Forfeits 
compensation 


Employer, 
one  half. 

Employees, 
one  half 


Employers  in- 
surance fund 
by  Insurance 
Commissioner 


Massa- 
chu- 
setts 


Doubles 

compensation 

to  employee 


Forfeits 
compensation 


Employer 


No  other  benefits 

affect   liability 

under   act 


Industrial 

Accident 

Board 


Mich- 
igan 


Not  mentioned 


Forfeits  compen- 
sation under  act. 
Gives  contributory 
negligence  defense 
at  law  to  employer 


Employer 


No  other 

benefits  affect 

liability 

under  act 


Industrial 

Accident 

Board 


Mon- 
tana 


Not  mentioned 


No  provision 


From  employer, 

Ic  per  ton  mined 

from  employee 

1%  of  wages 


Not  mentioned 


State 
Auditor 


Nevada 


No  provision 


No  provision 


Employer 


Not  mentioned 


New 
Hamp- 
shire 


Gives  employee 

option  of 

damage  suit 


Forfeits 
compensation 


Employer 


Not  mentioned 


New 
Jersey 


No  provision 


Forfeits 
compensation 


Employer 


Not  mentioned 


Court  of 

Common 

Pleas 


New 
York 


No  provision 


Forfeits 
compensation 


Employer 


Not  mentioned 


Ohio 


Gives  employee 

option  of 

damage  suit 


Forfeits 
compensation 


From  employer 
90%,  from  em- 
ployees 10% 
of  premium 


Not  mentioned 


State 
Liability 
Board  of 
Awards 


Rhode 
Island 


No  provision 


Forfeits 
compensation 


Employer 


Must  be  as  favorable 

to  employee  as  act, 

and  approved  by 

Superior  Court 


Superior 
Court 


"Wash- 
ington 


lves  compensa- 
tion under  act  and 
right  of  damage 
suit  for  excess 
of  damage 


Forfeits 
compensation 


Employer 


Not  mentioned 


Industrial 
Insurance 
Department 


Wis- 
consin 


No  provision 


Forfeits 
compensation 


Employer 


Valid  but  compensa- 
tion under  act  not 
reduced  by  em- 
ployee's  contribution 


Commission 


115 


TABLE  IV  — Continued 


State 

Medical  Aid 

Total  Disability 

Compensation 

Continuance 

Arizona 

No 
provision 

50%  full  time  wages 
semi-monthly 

During 

incapacity. 

Limited  to 

$4000 

California 

Limited  to 

90  days 
and  $100 

65%  average 
weekly  wages 

Limited  to 

15  years 

and  3  years' 

wages 

Illinois 

Limited  to 
8  weeks 
and  $200 

50%  average  weekly  wages 
$5  to  $12 

Limited  to  death 
benefit.    There- 
after 8%  death 
benefit  yearly 

Kansas 

No 
provision 

50%  average  weekly  wages 
$6  to  $15 

During 
incapacity. 
Limited  to 

10  years 

Maryland 

No 
provision 

50%   weekly  wages 

During 
disability 

Massachusetts 

Limited  to 
first  2  weeks 

50%  average  weekly  wages 

$4  to  $10 

Total  not  to  exceed  $3000 

500  weeks 

Michigan 

Limited  to 

first  three 

weeks 

50%  average  weekly  wages 

$4  to  $10 

Total  not  to  exceed  $4000 

500  weeks 

Montana 

At  discretion 
of  State 
Auditor 

$1  for  each  working 
day  paid  monthly 

During 
disability 

Nevada 

No 

provision 

60%  average  weekly  wages 

$3000 

New  Hampshire 

No 
provision 

50%  average  weekly  wages 
Limited  to  $10 

300  weeks 

New  Jersey 

Limited  to 

first  2  weeks 

and  $100 

50%  average  weekly  wages 
$5  to  $10 

400  weeks 

New  York 

No 
provision 

50%  average  weekly  wages 
Limited  to  $10 

8  years 

Ohio 

At  discretion 

of  Board 

but  limited 

to  $200 

66  2-3%   average  weekly  wages 
$5  to  $12 

During 
disability 

Rhode  Island 

Limited  to 
2  weeks 

50%  average  weekly  wages 
$4  to  $10 

500  weeks 

Washington 

No 
provision 

Not  married  $20  per  month 

Married  $25  per  month 

Children  each  $5  per  month 

Total  limited  to  $35  per  month 

During 
disability 

Wisconsin 

Limited  to 
90  days 

65%  average  weekly  wages 

$4.69  to  $9.38 

Full  wages   if  more 

is    required 

15  years 

or  4  times 

average  annual 

wage 

116 


TABLE  IV  —  Continued 


State 

Partial  Disability 

Waiting  Time 

Specified  Ikjukiks 

Compensation 

Continuance 

Arizona 

50%  wage  loss 
semi-monthly 

During 

disability. 

Limited 

to  $4000 

2  weeks. 

Compensation 

from  date 

of  accident 

No 
provision 

California 

65%  weekly 
wage  loss 

15  years 

1  week 

No 
provision 

Illinois 

50%  weekly 
wage  loss 

During 
disability 

1  week 

For.permanem 
disfigurement. 

Maximum  limit 
V4.  death  benefit 

Kansas 

25%  to 

50%  weekly 

wage  loss. 

$3  to  $12 

During 

disability. 

Limited 

to  10  years 

2  weeks 

No 
provision 

Maryland 

Difference  between 

total  disability 

benefits  and  earnings 

after  injury 

During 
disability 

1   week 

Specific 

fractions  of 

total  disability 

payments 

Massachusetts 

50%  weekly 

wage  loss. 

Limited  to  $10 

300  weeks 

2  weeks 

Specified 
compensation 

Michigan 

50%  weekly 

wage  loss. 

Limited  to  $10 

300  weeks 

2  weeks.    Compensa- 
tion from  date  of 
accident  if  disability 
continues  8  weeks 

Specified 
compensation 

Montana 

No  provision 

except  for 

specific  injuries 

12  weeks 

Specified 
compensation 

Nevada 

60%  wage  loss 

$3000 

10  days 

Specified 
compensation 

New 
Hampshire 

50%  weekly 

wage  loss. 

Limited  to  $10 

300  weeks 

2  weeks 

No 
provision 

New  Jersey 

Proportionate 

to  disability 

weeklv 

$5  to  $10 

300  weeks 

2  weeks 

Specified 
compensation 

New  York 

Not  to  exceed  wage 
loss  nor  be  less 

than  V2  wage  loss. 
Limited  to  $10 

8  years 

2  weeks 

No 
provision 

Ohio 

66  2-3%  weekly 
wage  loss. 
$5  to  $12 

6  vears  or 
$3400 

1  week 

No 

provision 

Rhode  Island 

50%  weekly 

wage  loss. 
Limited  to  $10 

300  weeks 

2  weeks 

Specified 
compensation 

Washington 

Monthly  sum 
proportionate 
to  disability 

$1500 

Not 
mentioned 

Specified 
compensation 

Wisconsin 

65%  weekly 
wage  loss 

15  vears  or 
$3000 

1  week.   Compensa- 
tion from  beginning 

if  injury  lasts 
4  weeks 

No 
provision 

117 


TABLE  IV  — Continued 


State 

Death 

Total  Dependents 

Partial 

Dependents 

Alien 
Dependents 

Mode  op 
Payment 

No  Dependents 

Arizona 

1200  times  daily 

wages.    Only  to  widow 

and  minor  children. 

$4000  limit 

Same  as  to 
total  dependents 

Not 
mentioned 

Lump 
sum 

Medical  and 
burial  expenses 

Cali- 
fornia 

3  years'  wages 
$1000  to  $5000 

Proportionate  to 
dependency 

Not 
mentioned 

Weekly. 

Burial  expenses. 
Maximum  $100 

Illinois 

50%  wages 

for  8  years 

$1500  to   $3500 

Proportionate  to 
dependency 

Not 
mentioned 

Weekly 
Commutableto 
lump  sum  by 
order  of  court 

Burial  expenses. 
Maximum  $150 

Kansas 

3  years'  wages 
$1200  to  $3600 

Proportionate  to 
dependency 

Non-resident 

aliens  receive 

sum  not  to 

exceed  $750 

Lump 
sum 

Burial  expenses. 
Maximum  $100 

Mary- 
land 

3  years'  wages. 

Minimum  limit 

$1000 

3  yrs.'  wages  of 

deceased  less  6 

yrs.'   wages   of 

dependent 

Not 
mentioned 

Lump  sum 
or  weekly 
according 
to  contract 

Medical  and 

burial  expenses 

$75  to  $100 

Massa- 
chu- 
setts 

50%  wages 
for  300  weeks 
$1200  to  $3000 

Proportionate  to 
dependency 

Not 
mentioned 

Weekly. 
Commutableto 
lump  sum  after 

6  months 

Burial  expenses. 
Maximum  $200 

Mich- 
igan 

50%  weekly- 
wages  for 
300  weeks 
$4  to  $10 

Proportionate  to 
dependency 

Not 
mentioned 

Weekly 

Medical  and 
burial  expenses. 
Maximum  $200 

Mon- 
tana 

$3000 

$3000 

Non-resident 
aliens  receive 
no  compen- 
sation 

Lump 
sum 

Nevada 

3  years'  wages 
$2000  to  $3000 

Half  the 

compensation 

to  total 

dependents 

Not 
mentioned 

Lump 
sum 

Burial  expenses. 
Maximum  $300 

New 
Hamp- 
shire 

150  weeks'  wages. 

Maximum  limit 

$3000 

Proportionate  to 
dependency 

No  compensa- 
tion to  aliens 
unless  resi- 
dents of  State 

Lump 
sum 

Burial  expenses. 
Maximum  $100 

New 
Jersey 

Widow  25%  w'klv  wages. 
Orphans  25  to  60%  w'kly 
wage.     Widow  and  1  child 
40%  weekly  wage.    Each 
child  to  4,    5%  extra.   300 
weeks.    $5-$  10  per  week 

Grand  parents, 
grandchildren, 
incapacitated  or 
minor  brothers  or 
sisters,  25%  w'k- 
ly wages300w'ks 

No  compensa- 
tion to  aliens 
not  living  in 

United  States 

Weekly. 
Commutableto 
lump  sum  by 
order  of  court 

Burial  expenses. 
Maximum  $200 

New 
York 

1200  times 

daily  wages 

Maximum  limit 

$3000 

Proportionate  to 
dependency 

Not 
mentioned 

Lump 
sum 

Medical  and 
burial  expenses. 
Maximum  $100 

Ohio 

66  2-3% 

6  years'  wages 

$1500  to  $3400 

Funeral  $150  additional 

36  2-3%  w'ges  for 
period  det'rm'n'd 
by  Board.  Funer 
d  $150  addit'nal 

Not 
mentioned 

Weekly. 

Commutableto 

lump  sum  by 

Board 

Medical  and  hos- 
pital expenses, 
limited  to  $200. 
Burial  $150 

Rhode 
Island 

50%  weekly 
wages  for 
300  weeks 
$4  to  $10 

Proportionate  to 
dependency 

Not 
mentioned 

Weekly 

Last  sickness 

and  burial 

expenses. 

Maximum  $200 

Wash- 
ington 

Widow  $20  a  mo.  till  re- 
marriage. $240     dower. 
Children   $5  each  addi- 
tional.  Orphans    $10    a 
mo.  each.   Maximum  $35 
a  mo.   Funeral    $75 

50%  average 

monthly  support 

received  from 

deceased 

Non-resident 

aliens  except 

father  and 

mother  not 

considered 

Monthly.    Sub- 
stitution of 
lump  sum  if 
beneficiary  be 

or  move 
out  of  State 

Burial  expenses. 
Maximum  $75 

Wis- 
consin 

Four  years' 
weekly    wages     - 
$1500  to  $3000 

Proportionate  to 
dependency 

Act  gives 

non-resident 

aliens  same 

benefits 

Weekly. 
Board  may 
commute  to 

lnmr>  sum 

Burial  expenses. 
Maximum  $100 

118 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  119 

hazardous  nature.583  The  employments  most  usually  ('nu- 
merated as  especially  dangerous  are :  railway  construction 
and  operation  (except  as  to  inter-State  commerce),  manu- 
facturing of  every  sort  wherein  power-driven  machinery  is 
used,  logging,  stevedoring,  the  erection,  repair  and  demoli- 
tion of  buildings,  bridges  and  other  structures  (sometimes 
of  specified  dimensions),  tunnel  driving,  well  drilling,  sub- 
aqueous or  sub-terranean  construction,  and  work  necessi- 
tating dangerous  proximity  to  explosives.  The  list  of  enu- 
merated employments  varies,  of  course,  with  the  industrial 
character  of  the  several  States. 

All  employees  in  the  employments  covered  appear  to  be 
within  the  benefits  of  the  Maryland,  Nevada,  Ohio,  and 
Washington  statutes.584  The  acts  of  Arizona,  Montana,  New 
Hampshire,  and  New  York  are  limited  to  persons  engaged 
in  mechanical  or  manual  labor,585  and  the  Illinois  act  to 
those  who  are  exposed  to  the  necessary  hazards  of  the  extra- 
hazardous employments.586  California,  Illinois,  Kansas, 
Massachusetts,  Michigan,  New  Jersey,  Rhode  Island,  and 
Wisconsin  exclude  casuals  and  persons  employed  otherwise 
than  in  the  ordinary  course  of  the  employer's  business.587 
Rhode  Island  also  excepts  employees  whose  remuneration 
exceeds  $1800  yearly.588 

Most  of  the  statutes  under  review  provide  compensation 
only  for  "personal  injury  by  accident  arising  out  of  and  in 
the  course  of  the  employment".589  This  language,  borrowed 
from  the  British  Workmen's  Compensation  Act,  has  been 
judicially  construed  and  has  acquired  a  technical  connota- 
tion. Under  the  British  act  three  conditions  must  concur  to 
justify  indemnity :  (1)  the  injury  must  have  been  produced 
by  an  unforseen  and  undesigned  event;  (2)  it  must  have 
been  sustained  by  an  employee  acting  as  such;  and  (3)  it 
must  have  been  caused  by  a  risk  incident  to  the  wTork  which 
it  was  the  employee's  duty  to  perform.590  The  Maryland, 
Ohio,  Washington,  and  Wisconsin  statutes,  which  allow  re- 


120  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

covery  for  all  accidental  injuries  sustained  in  the  course  of 
employment,  are  apparently  broader  in  scope  than  their 
British  prototype.591 

A  principal  employer  who  sublets  any  part  of  the  work 
undertaken  by  him  in  the  line  of  his  own  trade  or  business, 
to  be  performed  upon  the  principal's  premises  or  under  his 
control,  is,  by  the  acts  of  Illinois,  Kansas,  Massachusetts, 
Nevada,  and  New  York,  answerable  to  the  employees  of  his 
contractor  or  sub-contractor  as  if  they  were  employed  di- 
rectly by  him.592  In  Washington  the  principal,  under  such 
circumstances,  is  surety  for  the  contractor  or  sub-contrac- 
tor,593 and  in  the  other  States  just  named  he  has  a  right  to 
recover  from  the  intermediate  employer  the  compensations 
paid  on  his  behalf. 

ELECTION 

One  of  the  gravest  difficulties  that  confronted  the  com- 
missions in  drafting  bills,  and  the  legislatures  in  enacting 
them,  was  how  to  make  the  legislation  effective  upon  the 
persons  intended  to  be  included  therein.  On  the  one  hand, 
if  the  acts  were  compulsory,  they  might  be  held  by  the  courts 
to  deprive  employers  or  employees  of  rights  guaranteed 
under  the  State  and  Federal  constitutions.  On  the  other 
hand,  if  permissive  only  the  laws  would  have  no  substantial 
effect  —  employers  can,  and  some  of  them  do,  without  ex- 
press statutory  authorization,  compensate  accidents  sus- 
tained in  their  service  irrespective  of  "fault".  In  the  face 
of  this  dilemma,  three  different  courses  were  adopted  by  the 
several  States  which  have  enacted  indemnity  legislation. 
These  methods  may  be  termed,  respectively,  the  compul- 
sory, the  quasi-elective,  and  the  permissive  plans. 

Despite  constitutional  doubts,  Arizona,  Montana,  Nevada, 
New  York,  and  Washington  made  their  indemnity  acts  com- 
pulsory upon  employers,594  and  Washington  denied  any 
election  (except  as  to  injuries  caused  by  the  master's  de- 
liberate intention)  to  employees  as  well.595    Of  these  com- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  121 

pulsory  acts,  however,  one  (that  of  Montana)  is  restricted 
to  coal  miners  and  the  others  to  enumerated  dangerous 
trades ;  while  two  have  been  overthrown  by  the  courts.  The 
acts  of  California,  Michigan,  and  Wisconsin  are  compulsory 
only  as  respects  public  employers  and  employees.596 

Ten  States  sought  to  avoid  constitutional  objections,  and 
at  the  same  time  give  practical  effect  to  their  enactments, 
by  making  the  acts  elective  in  form  while  imposing  heavy 
penalties  upon  those  employers  or  employees  who  elect  to 
stand  upon  their  common  law  rights. 

In  pursuance  of  this  plan,  employers  who  fail  to  bring 
themselves  within  the  statutes  are  stripped  of  some  or  all  of 
their  common  law  defenses ;  whereas  employers  who  elect  to 
compensate  work  injuries  in  accordance  with  the  acts  are 
either  saved  these  defenses  or  (as  in  New  Hampshire  and 
Ohio)  are  altogether  exempted  from  liability  suits  founded 
on  ordinary  negligence.597  The  fellow-servant  and  assump- 
tion of  risk  doctrines  are  thus  conditionally  abrogated  by 
California,  Illinois,  Kansas,  Massachusetts,  Michigan,  New 
Hampshire,  New  Jersey,  Ohio,  Rhode  Island,  and  Wiscon- 
sin (the  fellow-servant  rule  is  repealed  by  Wisconsin  only 
as  to  employers  of  four  or  more  persons  in  the  same  com- 
mon employment).598  The  defense  of  contributory  negli- 
gence is  similarly  repealed  by  Massachusetts,  Michigan, 
New  Jersey,  Ohio,  and  Rhode  Island,599  and  is  modified  by 
California,  Illinois,  Kansas,  and  New  Hampshire.600 

In  most  of  the  States  which  have  quasi-elective  acts  the 
employer  who  wishes  to  avail  himself  thereof  must  make 
affirmative  election  by  filing  written  notice  with  the  proper 
administrative  authority.601  In  Illinois  and  New  Jersey, 
however,  such  election  is  presumed  unless  the  employer 
gives  formal  notice  to  the  contrary.602  Affirmative  election 
once  made  is  usually  binding  for  one  year,  and  thereafter 
is  annually  renewed  of  its  own  force  unless  notice  of  with- 
drawal is  given  before  the  expiration  of  the  period  for  which 


122  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

election  was  made.  In  eight  States  the  employer's  election 
to  come  under  the  statute  carries  with  it  that  of  his  em- 
ployees unless  they  severally  notify  him  to  the  contrary.6"3 
In  New  Hampshire  the  employer's  affirmative  election  re- 
lieves him  of  common  law  liability 604  and  in  Ohio  the  mere 
continuance  in  an  employment  with  notice  that  the  em- 
ployer has  subscribed  to  the  State  Insurance  Fund  consti- 
tutes a  binding  waiver,  on  the  part  of  the  employees,  of  all 
rights  save  those  under  the  statute.605  Arizona,  Montana, 
Nevada,  and  New  York  permit  the  employee  to  elect  after 
injury  whether  he  will  take  compensation  under  the  statutes 
or  pursue  his  remedy  at  common  law  or  under  the  employ- 
ers' liability  acts  of  those  States.606  California,  Illinois, 
Kansas,  New  Hampshire,  and  Ohio  allow  such  election  as  to 
injuries  caused  by  the  employer's  violation  of  the  safety 
laws.607 

Maryland  and  New  York  have  enacted  permissive  legis- 
lation, defining  the  terms  upon  which  employers  may,  by 
providing  voluntary  accident  relief,  exempt  themselves  from 
their  common  law  and  statutory  liability  for  ordinary  negli- 
gence.608 It  is  probable  that  some  large  employers  in  both 
States  will  take  advantage  of  these  statutes,  but  the  acts  are 
not  so  drawn  as  to  exert  effective  pressure  in  the  direction 
of  liability  without  fault.  The  Maryland  law  of  1912,  here- 
in classed  as  indemnity  legislation,  is  of  this  permissive 
character ;  whereas  the  New  York  statute  discussed  through- 
out this  chapter  is  the  compulsory  workmen's  compensation 
act  of  1910  which  was  held  invalid  by  the  Court  of  Appeals. 

SCHEDULES  OF  COMPENSATION 

The  indemnities  provided  include  medical  care,  funeral, 
death,  and  disability  benefits. 

Medical,  surgical  and  hospital  services  and  supplies  for 
injured  workmen  are  provided  by  eight  of  the  sixteen  stat- 
utes.   But  such  relief  is  limited  to  ninety  days  and  a  total 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  123 

of  $100  in  California,  to  eight  weeks  and  $200  in  Illinois,  to 
two  weeks  in  Massachusetts  and  Rhode  Island,  to  three 
weeks  in  Michigan,  to  two  weeks  and  $100  in  New  Jersey,  to 
$200  in  Ohio,  and  to  ninety  days  in  Wisconsin.609 

Reasonable  funeral  expenses,  commonly  limited  to  $100, 
are  provided  for  those  who  leave  no  dependents  by  fifteen 
States,  and  for  all  who  die  as  the  result  of  work  accidents 
by  only  Ohio  and  Washington.610 

Death  benefits  611  to  persons  wholly  dependent  upon  the 
deceased  are  three  years'  wages  in  California,  Kansas, 
Maryland,  Massachusetts,012  Michigan,618  Nevada,  New 
Hampshire,614  and  Rhode  Island; C15  and  four  years'  wages 
in  Arizona,610  Illinois,  New  York,617  Ohio,618  and  Wisconsin. 
In  New  Jersey  and  Washington  the  death  benefits  vary  ac- 
cording to  the  number  of  dependents,  ranging  from  one- 
fourth  to  three-fifths  wages  for  three  hundred  weeks  in  the 
former  State  and  from  $20  to  $35  per  month  in  the  latter. 
The  abortive  coal  miners'  insurance  act  of  Montana  pro- 
vided a  fixed  benefit  of  $3,000.  Those  States  which  make 
compensation  proportionate  to  wages  prescribe  certain 
maxima  and  minima,  the  lowest  sum  payable  in  any  State 
being  $1,000  (in  Maryland)  and  the  highest  $5,000  (in  Cali- 
fornia). Where  there  are  no  wholly  dependent  persons, 
compensation  proportionate  to  dependency  is,  in  most  cases, 
allowed  to  partial  dependents  if  there  are  any.  Death  pay- 
ments are,  by  seven  of  the  statutes,  made  in  lump ; 619  in  the 
other  States  surviving  dependents  receive  periodical  pen- 
sions, but  such  pensions  are,  under  certain  restrictions,  com- 
mutable  into  lump  sums.620 

To  the  totally  disabled  621  most  of  the  acts  grant  weekly 
or  bi-weekly  payments,  ranging  from  fifty  per  cent  of  full 
wages  in  ten  States  to  sixty-six  and  two-thirds  per  cent  in 
Ohio.  The  California  act  allowrs  full  wages  in  cases  of  such 
utter  helplessness  as  to  require  the  constant  attendance  of  a 
nurse.    The  Washington  law  bestows  $20  to  $35  per  month 


124  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

according  to  the  number  of  persons  dependent  upon  the  in- 
jured workman;  while  the  defunct  coal  miners'  insurance 
act  of  Montana  gave  a  flat  monthly  stipend  of  $1  for  each 
working  day.  The  periodic  payments  usually  are  subject 
to  certain  minima  and  maxima;  and  the  duration  of  such 
payments  is  limited  to  fifteen  years  in  California  and  Wis- 
consin; to  ten  years  in  Kansas,  Massachusetts,  Michigan, 
and  Rhode  Island ; 622  to  eight  years  in  Illinois,  New  Jer- 
sey,623 and  New  York ;  and  to  six  years  in  New  Hampshire.624 
Illinois,  however,  awards  an  annual  pension  of  eight  per 
cent  of  the  death  benefit  after  the  expiration  of  the  eighth 
year.  Lastly,  the  aggregate  disability  benefits  for  any  one 
injury  are  restricted  to  the  amount  of  the  death  benefit  by 
the  acts  of  Arizona,  California,  Illinois,  Massachusetts, 
Michigan,  Nevada,  and  Wisconsin.  Payments  continue  until 
death  in  Ohio  and  Washington. 

Indemnity  for  partial  incapacity 625  usually  bears  the 
same  proportion  to  the  total  disability  benefits  as  the  re- 
duced earning  capacity,  in  the  same  or  a  different  employ- 
ment, bears  to  the  former  earnings  of  the  injured.  The  Ne- 
vada and  Wisconsin  acts,  however,  consider  only  the  diminu- 
tion of  earning  capacity  in  the  employment  in  which  the  in- 
jury was  sustained.  Under  the  Maryland  act,  compensation 
for  partial  disability  equals  the  total  disability  benefit  di- 
minished by  earnings  (actual  or  potential)  after  the  injury. 
For  certain  enumerated  injuries,  constituting  permanent 
partial  disability,  Maryland,  Michigan,  New  Jersey,  and 
Rhode  Island  award  fixed  percentages  of  wages  for  speci- 
fied lengths  of  time,  and  Washington  grants  specified  lump 
sums.626  For  similar  injuries  Massachusetts  and  Nevada 
grant  indemnities  additional  to  the  partial  disability  bene- 
fits ;  while  the  Illinois  act  allows  such  additional  compensa- 
tion, not  to  exceed  one-fourth  of  the  death  benefit,  for  per- 
manent disfigurements.627 

A  "waiting  period",  during  which  no  disability  benefits 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  125 

are  paid,  is  exacted  by  most  of  the  compensation  acts.' 
This  period  is  one  week  in  California,  Illinois,  Maryland, 
Ohio,  and  Wisconsin,  ten  days  in  Nevada,  two  weeks  in 
Arizona,  Kansas,  Massachusetts,  Michigan,  New  Hamp- 
shire, New  Jersey,  New  York,  and  Rhode  Island,  and 
twelve  weeks  under  the  Montana  coal  miners'  insurance 
act.  But  if  disability  continues  for  more  than  two  weeks  in 
Arizona  and  Michigan,  four  weeks  in  Wisconsin,  or  three 
months  in  Montana,  compensation  is  allowed  from  the  date 
of  the  accident.  These  "waiting  periods"  are,  of  course, 
intended  to  discourage  malingering  or  simulation  by  the 
slightly  injured.  As  a  further  check  upon  feigned  disabili- 
ties, pensioners  are  required,  upon  demand  of  the  employer 
or  insurer,  to  submit  themselves  periodically  to  medical 
examination.629 

To  protect  the  beneficiaries  from  improvident  contracts 
or  unconscionable  bargains,  practically  all  of  the  compen- 
sation acts  make  indemnities  thereunder  non-assignable 
and  exempt  from  lien,  attachment,  or  execution.030  The 
best  protection  is,  of  course,  the  payment  of  all  indemnities 
in  weekly  installments  —  a  safeguard  which  is  sufficiently 
secured  by  few  of  the  American  statutes. 

RESPONSIBILITY  FOR  PAYMENTS 

With  respect  to  responsibility  for  the  payment  of  the 
foregoing  indemnities  nearly  every  plan  employed  in  Eu- 
rope has  been  adopted  by  one  or  more  of  the  American 
commonwealths. 

Arizona,  California,  Illinois,  Kansas,  Nevada,  New  Jer- 
sey, New  York,  Rhode  Island,  and  Wisconsin  follow  Great 
Britain  in  making  each  employer  directly  responsible  for 
the  compensation  of  injuries  sustained  in  his  employment 
and  in  not  requiring  any  insurance  of  liability.031  Insur- 
ance is,  however,  expressly  permitted  by  four  of  these 
States  °32  and  is  doubtless  lawful  in  all  of  them.     Some  se- 


126  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

curity  is  afforded,  except  in  Kansas,  by  making  accrued 
indemnities  preferred  claims  upon  the  employer's  assets.633 

Two  States  make  the  employer  directly  responsible  for 
compensations,  but  require  him  to  secure  the  payment 
thereof  in  some  manner  designated  by  the  statutes.  In 
New  Hampshire  the  employer  who  accepts  the  compensa- 
tion act  must  satisfy  the  Commissioner  of  Labor  that  he  is 
financially  able  to  comply  with  its  provisions  or  must  file 
with  the  Commissioner  a  bond  to  discharge  all  liability 
incurred  thereunder.634  Michigan  allows  four  options :  (1) 
direct  compensation  by  the  employer  upon  satisfying  the 
Industrial  Accident  Board  of  his  solvency  and  pecuniary 
responsibility;  (2)  insurance  in  any  liability  company  au- 
thorized to  assume  such  risks  in  the  State;  (3)  insurance 
in  any  employers'  insurance  assocation  organized  under 
the  laws  of  Michigan;  and  (4)  administration  of  benefits  by 
the  State  Commissioner  of  Insurance.635  With  respect  to 
the  last-mentioned  option,  it  is  provided  that,  upon  the  re- 
quest of  five  or  more  employers  who  employ  not  less  than 
three  thousand  persons  subject  to  the  compensation  act, 
the  Commissioner  of  Insurance  shall  create  an  accident 
fund,  shall  levy  and  collect  premiums  in  accordance  with  a 
risk  tariff  to  be  by  him  constructed,  and  shall  pay  all  claims 
which  may  accrue.636  Michigan  has  also  a  law  designed  to 
encourage  the  formation  of  employers'  mutual  insurance 
associations.637 

Massachusetts  seeks  to  secure  collective,  rather  than  in- 
dividual, responsibility  by  means  of  an  employers'  mutual 
called  the  Massachusetts  Employees'  Insurance  Associa- 
tion —  a  corporate  body  which  assumes  all  compensation 
liabilities  of  its  members.638  Each  subscriber  to  the  Asso- 
ciation has  one  vote  and  one  additional  vote  for  each  five 
hundred  employees,  but  not  more  than  twenty  in  all.  The 
Board  of  Directors,  elected  in  the  general  meeting,  is  au- 
thorized to  distribute  the  members  into  risk  groups,  make 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  127 

risk  tariffs,  fix  rates  and  collect  assessments  sufficient  in 
each  annual  period  to  meet  the  indemnities  payable  in  that 
year.  The  Association  is  empowered  to  make  and  enforce 
rules  for  accident  prevention  and  may  doubtless  penalize 
subscribers  who  fail  to  comply  therewith  by  increasing 
their  insurance  rates.  Employers  who  do  not  become  mem- 
bers of  the  Association,  and  who  elect  to  come  under  the 
compensation  act,  must  insure  in  some  liability  company 
authorized  to  do  business  in  the  State. 

Three  American  legislatures  have  adopted  the  Norway 
plan  of  exclusive  State  insurance.  The  Montana  act  of 
1909  (since  held  invalid)  was,  as  already  explained,  limited 
to  coal  mines,  and  as  to  these  the  law  was  compulsory. 
Premiums  were  fixed  at  one  cent  per  ton  of  coal  and  one 
per  cent  of  pay  roll,  the  latter  to  be  deducted  from  the 
wages  of  employees.  The  fund  so  provided  was  admin- 
istered by  the  Auditor  of  State.639  State  insurance  is  ob- 
ligatory, in  Ohio  upon  all  employers  who  accept  the  com- 
pensation plan,  and  in  Washington  upon  all  who  carry  on 
any  of  the  enumerated  hazardous  employments.  Risk 
classes  and  premium  rates  are  fixed  by  the  statute  in  Wash- 
ington, subject  to  legislative  revision.  In  Ohio  the  classes 
and  rates  are  determined  by  the  Liability  Board  of 
Awards,  which  employs  a  permanent  actuary  for  that  pur- 
pose. Establishment  premiums  in  both  cases  are  a  per- 
centage of  pay  roll  obtained  by  combining  the  risk  ratings 
of  the  several  classes  of  employees.  The  administrative 
boards,  expressly  in  Washington  and  by  fair  implication  in 
Ohio,  are  authorized  to  raise  the  risk  rating  of  any  em- 
ployer who  maintains  "unduly  dangerous"  conditions  of 
employment.  Disbursements  in  both  States  are  made  di- 
rectly by  the  administrative  boards  and  payment  of  the  as- 
sessed premiums  into  the  State  fund  relieves  the  employer 
of  every  other  liability  except  for  wilful  wrongs.640 

Maryland  requires  an  employer  who  accepts  the  terms  of 


128  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  permissive  act  either  to  insure  his  employees  against 
work  accidents  in  some  casualty  company  organized  under 
the  laws  of  that  State  or  to  establish  a  trust  fund  in- 
violably appropriated  to  the  purposes  of  such  insurance. 
The  latter  option  is  restricted  to  employers  of  not  less  than 
fifteen  hundred  workmen.  It  will  be  observed  that  the 
Maryland  plan  provides  for  "workmen's  collective  acci- 
dent" as  distinguished  from  "employers'  liability"  insur- 
ance.641 

Summing  up,  it  appears  that  of  the  fourteen  statutes 
which  have  thus  far  survived  the  courts,  eight  make  the 
employer  individually  liable  for  the  compensations  pro- 
vided, two  impose  individual  liability  but  exact  some  form 
of  guarantee  that  the  payments  will  be  forthcoming  when 
due,  three  create  collective  liability  (two  by  means  of  State 
insurance  and  one  by  an  employers '  mutual  with  an  option 
of  stock  company  insurance),  and  one  allows  the  substitu- 
tion of  workmen's  collective  accident  insurance  for  em- 
ployers' liability. 

BUKDEN  OF  INDEMNITIES 

The  burden  of  indemnifying  work  accidents  is,  by  thir- 
teen of  the  statutes  under  review,  imposed  exclusively  upon 
the  employer.  One-tenth  of  the  insurance  premiums  in 
Ohio  642  and  one-half  in  Maryland 643  may  be  deducted  from 
the  wages  of  insured  employees.  The  Montana  act  allowed 
coal  mine  operators  to  deduct  one  per  cent  from  the  gross 
earnings  of  all  employees  affected  by  the  act.644  The  aggre- 
gate of  such  deductions  would  probably  equal  <the  op- 
erators' contribution  of  one  cent  per  ton  of  coal. 

CONTEACTING  OUT 

Arizona,  Illinois,  Kansas,  and  Rhode  Island  permit  the 
employer  to  contract  out  of  liability,  at  either  statutory  or 
common  law,  by  establishing  a  scheme  of  accident  relief  — 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  129 

but  only  upon  the  condition  that  the  benefits  provided  at 
the  employers'  expense,  exclusive  of  any  contributions 
from  employees,  shall  at  least  equal  the  indemnities  se- 
cured by  the  compensation  acts.845  No  such  scheme  is  valid 
in  Kansas  until  certified  by  the  Superintendent  of  Insur- 
ance, nor  in  Rhode  Island  unless  approved  by  the  Superior 
Court.  California  and  Wisconsin  allow  accident  benefits 
additional  to  those  of  the  compensation  acts,  but  no  such 
benefits  affect  the  employer's  liability  thereunder.0415  In 
Massachusetts,  Michigan,  and  Rhode  Island  no  payments 
from  any  other  source  can  be  considered  in  awarding  in- 
demnities under  the  compensation  laws.647  Ohio  provides 
but  one  mode  of  election  —  payment  of  premiums  into  the 
State  insurance  fund  —  and  Washington  admits  no  alterna- 
tive ;  contracting  out  would  be  impossible  under  either  stat- 
ute. The  remaining  compensation  acts  make  no  mention 
of  the  subject. 

ADMINISTRATION 

California,  Massachusetts,  Michigan,  Ohio,  Washington, 
and  Wisconsin  have  created  special  commissions,  main- 
tained out  of  the  public  treasury,  and  clothed  with  impor- 
tant supervisory  and  administrative  powers.648  (See  Table 
V.)  The  Montana  coal  miners'  insurance,  during  its  brief 
existence,  was  administered  by  the  Auditor  of  State.649 
The  other  States  provide  no  special  machinery  for  the  ad- 
ministration of  their  indemnity  laws.  New  Jersey,  how- 
ever, has  an  unpaid  permanent  Employers'  Liability  Com- 
mission whose  duty  it  is  to  observe  and  report  upon  the 
operation  of  the  compensation  act.650  Employers  who  elect 
under  the  compensation  laws  must  report  settlements  of 
claims,  monthly  in  Illinois  and  annually  in  Kansas  and 
New  Hampshire,  to  the  labor  bureaus  of  those  States.651 
Quarterly  reports  of  settlements  and  releases  under  the 
Maryland  Employees'  Insurance  Act  must  be  made  to  the 


130  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

TABLE  V 

ADMINISTEATIVE   BOARDS 


States 

Title  of 
Board 

Mem- 
bers 

Appoint- 
ment 

Term 

Salary 

Functions 

California 

Industrial 

Accident 

Board 

3 

Governor 

and 
Senate 

4  years 

$3600 

Administer  Com- 
pensation Act.  De- 
termine Claims 

Massachusetts 

Industrial 

Accident 

Board 

5 

Governor 

and 
Council 

5  years 

Chairman 
$5000 
Others 
$4500 

Supervise  Employ- 
ers '  Insurance  As- 
sociation. Adminis- 
ter Compensation 
Act.  Determine  dis- 
putes. Collect  Ac- 
cident records 

Michigan 

Industrial 

Accident 

Board 

3 

Governor 

and 
Senate 

6  years 

$3500 

Administer  Com- 
pensation Act.  De- 
termine disputes. 
Collect  accident 
records 

Montana 

Auditor 
of  State 

Administer  Coal 
Miners '  Insurance 
Act 

Ohio 

Liability 
Board  of 
Awards 

3 

Governor 

6  years 

$5000 

Administer  Insur- 
ance Act 

New  Jersey 

Employers ' 

Liability 

Commission 

6 

Governor 

2  years 

Traveling 
expenses 

Report  upon  opera- 
tion of  Compensa- 
tion Act 

Washington 

Industrial 
Insurance 
Departmeni 

3 

Governor 

6  years 

$5000 

Administer  Insur- 
ance Act 

Wisconsin 

Industrial 
Commission 

3 

Governor 
and 

Senate 

6  years 

$5000 

Administer  Work- 
men 's  Compensa- 
tion Act  and  all 
labor  laws.  Collect 
Accident   Records 

Commissioner  of  Insurance,  and  no  relief  or  insurance  con- 
tract is  valid  until  approved  by  him.652 

REPORT  OF  ACCIDENTS 

Seven  of  the  compensation  laws  require  industrial  acci- 
dents to  be  reported  to  a  State  administrative  authority.653 
In  Massachusetts  every  injury,  fatal  or  otherwise,  must  be 
reported  to  the  Industrial  Accident  Board  within  forty- 
eight  hours  after  its  occurrence  and  the  report  must  state 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  131 

the  name,  age,  sex,  and  occupation  of  the  injured  employee, 
the  date  and  hour  of  the  accident,  the  nature  and  cause  of 
the  injury  and  such  other  information  as  the  Board  may 
require.  New  Jersey  and  Washington  require  less  com- 
plete, but  immediate,  reports  of  all  injuries;  while  in  Illi- 
nois the  same  requirement  applies  to  fatal  injuries  only. 
Michigan  allows  ten  days  for  a  report  similar  to  that  de- 
manded by  the  Massachusetts  law.  Wisconsin  exacts  a 
complete  monthly  record  of  disabling  injuries,  interpreted 
by  the  Industrial  Commission  to  mean  injuries  causing 
disability  for  at  least  seven  days.  Kansas  requires  only 
an  annual  report  to  the  Factory  Inspector  —  a  require- 
ment of  no  substantial  value  for  statistical  or  other  pur- 
poses. To  judge  from  published  reports,  the  commissions 
of  Massachusetts,  Washington,  and  Wisconsin  secure  fair- 
ly complete  returns.  The  New  Jersey  reports,  on  the  con- 
trary, appear  to  include  but  a  small  proportion  of  the  actual 
number  of  work  accidents.  The  Massachusetts  records, 
comprising  complete  data  for  all  work  injuries,  are  much 
the  most  valuable  for  the  purposes,  both  of  accident  preven- 
tion and  of  indemnity  insurance. 

ADJUDICATION  OF  CLAIMS 

All  of  the  statutes  thus  far  enacted  seek  to  minimize  the 
delay  and  expense  of  litigation.054  The  main  provisions 
looking  to  this  end  are  summarized  in  Table  VI.  It  will  be 
noted  that  in  California,  Massachusetts,  Michigan,  and  Wis- 
consin all  disputes,  and  in  Ohio  and  Washington  all  claims, 
are  determined,  in  the  first  instance,  by  the  administrative 
boards  of  those  States.  Awards  so  made  are  subject  to  court 
review  only  on  questions  of  law  in  Massachusetts,  and  in 
California,  Michigan,  Washington,  and  Wisconsin,  only  on 
the  grounds  that  the  award  was  obtained  by  fraud  or  was 
without  the  jurisdiction  of  the  board  or  was  unsupported  by 
the  facts  found.    The  Montana  coal  miners'  insurance  law 


132 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


TABLE  VI 
ADJUDICATION  OF  CLAIMS 


States 

Primary   De- 

rERMINATION  OF 

Claims 

Court  Review 

Jury  Trial 

Fees  op 
Claimants  ' 
Attorneys 

Arizona 

By     agreement, 
arbitration,  ref- 
erence to  Attor- 
ney   General   or 
action  at  law 

Action     at     law 
upon  failure  of 
settlement 

Allowed  in  suits 
at  law^ 

Fixed  by  court, 
limited    to     25 
aer  cent  of 
award 

California 

All  disputes  de- 
termined by  In- 
dustrial      Acci- 
dent Board 

Only  on  grounds 
of    fraud,    want 
of    jurisdiction, 
or     insufficiency 
of    facts    found 
to  support 
award 

None 

No  provision 

Illinois 

By  agreement  or 
by  Board  of  Ar- 
bitrators      with 
umpire   appoint- 
ed by  Court 

On  appeal  from 
Arbitrators. 
Trial  de  novo 

If    demanded 
with    notice    of 
appeal 

Subject    to    ap- 
proval of  court 

Kansas 

By  agreement  or 
arbitration.   Ac- 
tion   at    law    in 
default  of  agree- 
ment    or     arbi- 
tration 

Action  at  law  in 
default  of 
agreement   or 
arbitration 

If    demanded 
with    notice    of 
appeal 

Subject    to    ap- 
proval of  court 

Maryland 

By      arbitrators 
named  by  part- 
ies   or    by    Cir- 
cuit Court. 
Award    final 

None 

None 

Not  mentioned 

Massa- 
chusetts 

By  agreement 
approved      by 
Board.  Disputes 
determined      by 
arbitrators  with 
member  of  Board 
as  chairman  and 
reviewable  by 
Board 

On  questions  of 
law  only 

None 

Subject    to    ap- 
proval of  Indus- 
trial Accident 
Board 

Michigan 

By  agreemenj 
approved      by 
Board.  Disputes 
determined      by 
arbitrators  with 
member  of  Boarc 
as  chairman  anc 
reviewable  bj 
Board 

On  questions  oi 
law  only,  by  Su 
preme  Court 

I 

r 

None 

Subject    to    ap- 
proval of  Indus- 
trial Accident 
Board 

INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  133 


States 

Primary   De- 
termination OF 
Claims 

Court  Review 

Jury  Trial 

Fees  op 
Claimants' 
Attorneys 

Montana 

By    Auditor    of 

State 

On  questions  of 
jurisdiction    on- 

None 

No  provision 

Nevada 

By      arbitration 
or   suit   at  law 

Original   pro- 
ceedings  or   ap- 
peal  from   arbi- 
trators 

Allowed 

No  provision 

New 

Hampshire 

By  agreement  or 
petition  in 
equity 

Original   pro- 
ceeding in 
equity 

None 

Subject    to    ap- 
proval of  court 

New  Jersey 

By  agreement  or 
by  Court  of 
Common  Pleas 

Award  of  Court 
of  Common 
Pleas    reviewa- 
ble only  on 
questions  of  law 

None 

No  provision 

New  York 

By      agreement, 
arbitration       or 
action  at  law 

By  appeal  from 
arbitration  or 
original   action 

Allowed 

Subject    to    ap- 
proval of  court 

Ohio 

By     Liability 
Board  of 
Awards.      Find- 
ings  final   on 
facts 

Original   pro- 
ceedings when 
compensation  is 
denied   on 
grounds  going 
to  basis  of 
claim 

If  demanded  in 
court  trials 

Fixed    by    trial 
judge 

Ehode  Island 

By  agreement 
approved  by  Su- 
perior  Court   or 
by  petition  in 
equity 

Award  of  Su- 
perior Court  re- 
viewable only 
on   questions   of 
law  or  equity 
By  appeal  on 
grounds  of 
fraud,   want  of 
jurisdiction    or 
insufficiency    of 
facts    found    to 
support 
award  655 

None 

No  provision 

Washington 

All     claims    de- 
termined by  In- 
dustrial     Insur- 
ance Depart- 
ment 

Of    right    as    to 
certain   matters. 
In  discretion  of 
court  as  to  oth- 
ers 

Subject    to    ap- 
proval of  court 

Wisconsin 

All  disputes  de- 
termined by  In- 
dustrial Com- 
mission.     Find- 
ings of  fact 
final 

Only  on  ground 
of    fraud,    want 
of     jurisdiction, 
or     insufficiency 
of    facts    found 
to  support 
award 

None 

Not  to  exceed  10 
per  cent  of 
award    without 
Commission 's 
authorization 

similarly  vested  in  the  Auditor  of  State  plenary  power  to 
determine  claims  to  compensation.    In  Ohio  only  a  finding 


134  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

which  wholly  denies  compensation  can  be  reviewed  by  the 
courts.  New  Hampshire,  New  Jersey,  and  Rhode  Island, 
which  have  no  proper  administrative  machinery,,  provide  for 
the  determination  of  claims,  in  default  of  agreement  between 
the  parties,  by  a  single  judge  whose  findings  of  fact  are  final. 
In  Maryland,  a  permissive  relief  scheme  may  provide  for  the 
reference  of  all  disputes  to  arbitrators  whose  award  is  bind- 
ing upon  both  parties.  Arizona  and  Illinois  require,  and 
Kansas,  Nevada,  and  New  York  permit,  the  arbitration  of 
claims  before  resort  is  had  to  the  courts.  Jury  trial,  as  to 
claims  arising  under  the  compensation  or  insurance  acts,  is 
wholly  denied  by  nine  statutes  and  is  somewhat  restricted 
by  four.  In  the  further  interest  of  "cheap  and  speedy  jus- 
tice", ten  States  provide  that  the  fees  of  a  claimant's  at- 
torney shall  not  be  a  lien  upon  any  award  under  the  act  un- 
less approved  by  the  trial  court  or  by  the  proper  adminis- 
trative board. 

CONSTITUTIONAL.  QUESTIONS 

Of  the  sixteen  workmen's  compensation  or  insurance 
statutes  analyzed  in  the  preceding  pages  but  six  have  thus 
far  run  the  gauntlet  of  the  State  courts.  Of  these,  two  have 
perished  at  the  hands  of  the  highest  tribunals  of  Montana  656 
and  New  York,657  respectively ;  while  four  survived  the  courts 
of  last  resort  in  the  States  that  enacted  them  —  Massachu- 
setts,658 Ohio,659  Washington,660  and  Wisconsin.661  None  has 
yet  passed  the  Federal  Supreme  Court.  It  is,  therefore,  too 
early  for  even  a  layman  to  express  a  positive  opinion  on  the 
constitutional  questions  involved  in  workmen's  compensa- 
tion. None  the  less,  the  adjudged  cases  at  least  define  the 
issues  presented  and  afford  grounds  for  something  more 
than  an  intelligent  guess  as  to  the  type  of  legislation  likely 
to  be  upheld  by  the  courts  of  Iowa. 

The  constitutional  rocks  most  to  be  feared  by  those  who 
would  frame  a  rational  system  of  indemnity  for  work  acci- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  135 

dents  are  the  ''due  process"  and  "equal  protection"  clauses 
and  the  guarantees  of  jury  trial. 

Due  Process  of  Law :  —  Since  at  common  law,  as  it 
stood  when  the  existing  constitutional  guarantees  were 
framed,  liability  without  fault  was,  at  best,  highly  exception- 
al and  was  unknown  as  between  master  and  servant,06-  and 
since  "due  process  of  law",  or  "the  law  of  the  land",  may 
be  held  to  require  the  determination  of  private  rights  in 
accordance  with  general  principles  of  jurisprudence  recog- 
nized at  the  time  when  these  guarantees  became  operative,663 
it  may  colorably  be  argued  that  legislation  which  makes 
an  employer  answerable  for  injuries  occasioned  by  no  fault 
of  his,  or  which  mulcts  one  employer  for  injuries  sustained 
in  the  service  of  another,  amounts  to  a  deprivation  of  prop- 
erty without  "due  process  of  law"  in  contravention  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States  and  of  similar  provisions  in  the  fundamental  law  of 
most  of  the  States.  Such  was  the  reasoning  of  the  New 
York  Court  of  Appeals  and  such  the  argument  advanced  by 
learned  counsel  to  every  court  which  has  had  occasion  to 
pass  upon  the  new  legislation. 

To  this  argument  three  replies  are  made.664  In  the 
first  place,  liability  without  fault  was  not  unknown 
to  the  eighteenth  century  common  law.665  English  jur- 
isprudence has,  in  fact,  long  recognized  that  one  may 
stand  in  such  initiatory  relation  to  a  chain  of  causation 
as  to  be  rightly  held  answerable  for  consequences  which  were 
neither  intended  by  him  nor  attributable  to  any  negligence 
on  his  part.666  The  capitalist-employer's  relation  to  work 
accidents  is  of  this  character :  he  initiates  the  whole  indus- 
trial process  and  may  justly  be  held  to  answer,  in  the  first 
instance,  for  any  injury  to  life  or  property  thereby  occa- 
sioned.607 The  absolute  liability  of  an  employer  for  injuries 
sustained  in  his  service  is  thus  supportable  on  the  same 


136  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

principles  as  the  long  established  liability  of  a  ship  owner 
for  sick  and  disabled  seamen  or  the  more  ancient  liability  of 
a  harborer  of  fire  or  a  keeper  of  cattle.668  Hence  the  liabili- 
ties imposed  by  the  new  workmen's  compensation  acts  are 
not  subversive  of ' '  those  ancient  and  fundamental  principles 
of  law"  which  are  guaranteed  by  the  due  process  clauses. 

Secondly,  the  broad  guarantees  of  the  Bill  of  Rights  are 
not  to  be  construed  with  the  same  strictness  as  the  more 
specific  commands  and  prohibitions  of  written  constitutions. 
Nor  should  they  be  interpreted  with  reference  solely  to  the 
economic  conditions  and  the  corresponding  social  philosophy 
of  the  times  in  which  they  were  framed.669  These  guaran- 
tees, in  fact,  were  never  intended  to  render  the  law  un- 
changeable 67°  or  to  deprive  it  of  every  quality  but  its  age.671 
The  law  is,  to  a  certain  extent,  a  progressive  science :  changes 
in  its  structure  have  been  made  with  increasing  frequency 
from  the  signing  of  Magna  Charta  to  the  present  day,  and 
"it  is  impossible  to  suppose  that  they  will  not  continue,  and 
the  law  be  forced  to  adapt  itself  to  new  conditions  of  society, 
and,  particularly,  to  the  new  relations  between  employers 
and  employes,  as  they  arise. ' ' 672  In  short, ' '  there  is  nothing 
in  Magna  Charta,  rightly  construed  as  a  broad  charter  of 
public  right  and  law,  which  ought  to  exclude  the  best  ideas 
of  all  systems  and  of  every  age '  '.673  Lastly,  it  is  well  settled 
that  there  can  be  no  property,  or  vested  interest  in  any  rule 
of  the  common  law  674  —  such  as  the  rule  which  imposes  upon 
the  employee,  rather  than  the  employer,  the  burden  of  occu- 
pational risks.675  Hence,  the  due  process  guarantee  does  not 
preclude  legislatures  from  so  changing  this  rule  as  to  con- 
form to  current  standards  of  social  justice. 

Lastly,  it  is  urged  that  legislation  which  would  otherwise 
amount  to  a  taking  of  property  without  due  process  of  law 
may  be  justified  as  an  exercise  of  the  police  power  —  the 
power  of  promoting  the  public  welfare  by  restraining  the 
use  of  liberty  and  property.676    This  power,  in  the  language 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  137 

of  Mr.  Justice  Holmes,  speaking  for  the  Supreme  Court  of 
the  United  States,  "extends  to  all  the  great  public  needs", 
and  "may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage, 
or  held  by  the  prevailing  morality  or  strong  and  preponder- 
ant opinion  to  be  greatly  and  immediately  necessary  to  the 
public  welfare. ' ' 677  It  is  felt  that  the  overwhelming  socio- 
logical and  economic  arguments  in  favor  of  indemnifying 
work  accidents  on  the  principle  of  occupational  risks  are 
sufficient  to  bring  legislation  looking  to  this  end  within  the 
police  power,  as  above  defined.678  Indeed,  it  is  scarcely  too 
much  to  say  that  the  compensation  of  work  accidents  is 
clearly  within  the  police  power  in  the  narrower  sense  of  a 
regulation  in  the  interest  of  "the  public  health,  peace,  safety 
and  morals".679  It  is  the  unanimous  testimony,  not  only  of 
the  Germans  themselves,  but  of  foreign  observers  as  well, 
that  systematic  accident  indemnity  in  Germany  has  not 
merely  diminished  poverty  —  surely  a  legitimate  end  of 
police  regulation  —  but  has  powerfully  conduced  to  the  sav- 
ing of  life  and  limb,  has  reduced  the  average  duration  of  in- 
capacity from  work  accidents,  has  improved  the  general 
health  of  industrial  operatives,  and  has  raised  the  efficiency 
of  the  nation  at  large.  German  publicists,  employers,  and 
trade  unionists  are  nearly  at  one  in  attributing  to  their  sys- 
tem of  social  insurance  much  of  that  marvelous  industrial 
efficiency  which  has  enabled  them,  with  meagre  natural  re- 
sources, to  outstrip  more  favored  competitors  in  the  contest 
for  industrial  supremacy.680 

In  support  of  the  contention  that  compensation  legislation 
is  within  the  police  power,  are  cited  numerous  statutes  which 
impose  liability  without  fault  and  which  have  none  the  less 
been  upheld  by  courts  of  last  resort.681  Among  such  statutes 
may  be  mentioned  those  compelling  the  receiving  carrier  to 
pay  for  damage  of  merchandise  caused  by  the  negligence  of 
a  later  carrier  on  the  route,682  making  a  railway  company 
absolutely  liable  for  fires  started  by  its  engines  <i83  and  for 


138  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  death  or  injury  of  a  passenger,684  holding  the  owner  of  a 
building  answerable  for  the  sale  of  intoxicants  upon  his 
premises  by  a  lessee,685  obliging  fire  insurance  agents  to  con- 
tribute to  a  fireman's  relief  fund,686  taxing  all  dog  owners  to 
create  a  fund  which  is  used  to  pay  for  sheep  killed  by  dogs 
of  unknown  ownership,087  and  requiring  banks  to  contribute 
to  a  fund  for  the  guarantee  of  deposits.688  Nearly  all  of 
these  statutes  are  as  open  to  the  "due  process"  objection  as 
any  accident  indemnity  law  yet  enacted  in  the  United  States 
and  none  of  them  is  supported  by  as  urgent  reasons  of  pub- 
lic necessity. 

Equal  Protection  of  the  Law :  —  As  has  already  appeared, 
most  of  the  statutes  under  review  are  more  or  less  restricted 
in  scope,  either  because  public  opinion  would  not  support 
such  legislation  if  applied  to  all  employments  and  all  em- 
ployees, or  because  it  was  thought  necessary  to  limit  the  en- 
actments to  extra-hazardous  occupations  in  order  to  bring 
them  within  the  police  power.  Such  limitations  expose  the 
statutes  to  the  objection  of  being  class  legislation.  That  is, 
it  is  contended  that  these  statutes  violate  the  "  equal  protec- 
tion" guarantees  of  the  State  and  Federal  constitutions  in 
that  they  create  new  liabilities  and  remedies  for  some  em- 
ployers and  employees  while  leaving  the  common  law  opera- 
tive upon  others. 

Doubtless,  a  scholastic  interpretation  of  "equal  protec- 
tion ' '  would  require  the  same  law  for  minors  and  adults,  for 
women  and  men,  for  coal  miners  and  college  professors. 
But,  as  actually  construed  by  the  courts,  the  guarantee  of 
equality  before  the  law  does  not  prevent ' '  reasonable  classi- 
fication". So  long  as  the  classes  made  by  the  legislature 
correspond  to  actual  distinctions  of  substantial  importance 
for  the  purpose  in  hand,  and  so  long  as  like  treatment  is  ac- 
corded to  all  persons  under  like  conditions,  the  equal  pro- 
tection of  the  law  is  not  denied.689     There  is  little  doubt, 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  L39 

therefore,  that  the  legislature  may  prescribe  rules  of  lia- 
bility iu  extra-hazardous  employments  different  from  those 
applicable  to  other  occupations.690 

Accordingly  it  has  been  held  that  the  exclusion  of  farm 
laborers  and  domestic  servants691  from  a  workmen's  com- 
pensation act,  or  the  limitation  of  such  an  act  to  specified 
dangerous  employments,692  or  even  to  a  particular  industry, 
as  coal  mining 693  or  railroad  transportation,694  is  not  vio- 
lative of  the  principle  of  equality.  Similarly,  the  repeal  of 
common  law  defenses  as  an  inducement  to  come  under  the 
compensation  act,  except  as  to  establishments  employing 
fewer  than  five  persons,  is  not  unreasonable  discrimina- 
tion.695 The  hazard  of  any  regular  employment  is  obviously 
less  when  there  are  but  four  co-employees  than  when  there 
are  more,  and  in  any  classification  based  on  number  or  size 
the  precise  line  of  demarcation  must  be  arbitrarily  drawn.696 
Nor  does  the  fact  that  an  elective  statute  creates  a  different 
law  for  different  persons  in  the  same  industrial  situation 
constitute  unequal  justice  within  the  meaning  of  the  consti- 
tutional inhibition.  Election  under  the  act  being  (construc- 
tively) open  to  all,  there  is  reasonable  ground  for  the  dis- 
tinction between  those  who  do  and  those  who  do  not  so 
elect.697 

Of  course,  the  classification  to  be  upheld  must  rest  on 
some  reasonable  ground  and  not  be  merely  arbitrary.698 
Hence  an  occupation  which  is  not  extra-hazardous  in  fact 
can  not  be  made  so  by  mere  legislative  fiat,  and  a  statutory 
declaration  that  certain  enumerated  employments  are  "here- 
by determined  to  be  especially  dangerous"  699  would  not  be 
conclusive  on  the  courts  as  to  any  specific  employment  so 
enumerated.700  So,  too,  the  fact  that  an  employment  is  extra- 
hazardous will  not  justify  the  creation  of  a  double  liability 
as  to  such  employment  only,  whereby  an  employer  therein 
who  has  been  obliged  to  subscribe  to  a  State  insurance  fund 
may  still  be  mulcted  in  damages  for  mere  ordinary  negli- 


140  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

gence.701  It  was  on  this  ground  that  the  Montana  Coal 
Miners'  Insurance  Act,  otherwise  approved  by  the  Supreme 
Court  of  that  State,702  was  declared  invalid.  Doubtless,  how- 
ever, the  legislature  may,  without  repugnance  to  the  equal 
protection  clause,  impose  additional  liabilities  for  wilful 
wrongs  or  for  violation  of  the  safety  laws.703 

Jury  Trial :  —  Many  of  the  workmen's  compensation  acts 
provide  for  the  determination  of  claims  thereunder  without 
recourse  to  a  jury  and  so  involve  an  apparent  impairment 
of  the  constitutional  right  to  jury  trial.  None  of  the  acts 
has  thus  far  been  declared  invalid  on  this  ground.  The  New 
York  Court  of  Appeals  was  divided  on  the  question  704  and, 
having  found  the  act  unconstitutional  on  other  grounds,  was 
not  obliged  to  pass  upon  it.  The  highest  courts  of  Massa- 
chusetts,705 Montana,706  Ohio,707  and  Washington  708  have  re- 
solved the  question  in  favor  of  the  statutory  provisions  in 
controversy.  Inasmuch,  however,  as  both  the  several  pro- 
visions under  consideration  and  the  constitutional  guaran- 
tees with  respect  to  which  they  were  called  in  question  differ 
somewhat  widely,  it  is  difficult  to  make  any  general  state- 
ment as  to  the  course  of  reasoning  followed.  Still,  two  main 
lines  of  argument,  favorable  to  the  constitutionality  of  the 
provisions  under  discussion,  are  deducible  from  the  ad- 
judged cases. 

The  first  of  these  arguments  applies  only  to  quasi-elective 
statutes.  An  elective  act,  it  is  said,  involves  no  deprivation 
of  constitutional  rights  since  such  act  is  operative  only  upon 
parties  who  have  (constructively)  assented  thereto.709 

With  respect  to  a  compulsory  law,  it  has  been  argued  that 
a  clause  reading,  ''the  right  of  trial  by  jury  shall  remain 
inviolate",710  applies  only  to  causes  of  action  wherein  the 
right  to  a  jury  trial  existed  at  the  time  of  the  adoption  of  the 
constitution.  Actions  in  tort  obviously  fall  within  this  cate- 
gory and  doubtless  the  legislature  could  not  provide  for  the 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  141 

determination  of  a  tort  action  otherwise  than  by  jury  trial, 
without  the  consent  of  the  parties  thereto.  But  the  legisla- 
ture ma}T,  in  the  exercise  of  its  police  power,  abolish  any 
common  law  cause  of  action  not  specifically  protected  by  the 
constitution,  and  may  substitute  therefor  a  new  remedy  as 
to  which  no  constitutional  right  of  jury  trial  exists.711 

The  jury  question  can  not  be  said  to  have  been  settled  by 
the  decisions  thus  far  rendered.  In  none  of  the  cases  was 
the  question  presented  by  a  party  entitled  to  raise  it.  The 
Montana  decision  might  have  been  reached  without  regard 
to  this  issue ;  the  Massachusetts  decision  was  an  opinion  of 
the  Supreme  Court  of  Judicature  rendered  to  the  Senate  in 
advance  of  the  enactment  of  the  law;  and  the  cases  in  the 
other  States  were  friendly  proceedings  in  equity.712  In  Ohio 
and  Wisconsin  the  jury  question,  though  argued  by  counsel, 
was  hardly  passed  on  by  the  courts ;  and  in  Washington  the 
opinion  announced  must  be  regarded,  in  respect  to  this  ques- 
tion, as  mere  obiter  dicta,  which  binds  no  one,  not  even  the 
justices  who  rendered  it.713  None  the  less,  the  opinions  ex- 
pressed probably  indicate  the  position  which  these  courts 
will  take  when  the  issue  shall  be  presented  by  real  parties 
in  interest. 

A  collateral  question,  cognate  to  the  one  just  discussed,  is 
the  power  of  an  administrative  officer  or  board  to  make 
awards  under  workmen's  compensation  acts.  If  the  power 
vested  in  these  boards  is  of  a  judicial  character  it  is  clearly 
in  derogation  of  those  constitutional  provisions  which  vest 
all  judicial  power  in  courts  of  law  and  equity.714  Five  courts 
of  last  resort  have  thus  far  passed  upon  this  question,  and  all 
are  agreed  that  an  administrative  body  may  be  empowered 
to  determine  issues  of  fact  arising  under  such  legislation, 
and  that  its  findings  as  to  matters  properly  within  its  juris- 
diction may  be  made  conclusive.  Of  course,  some  power  of 
review  must  be  preserved  to  the  courts,  as  the  determination 
of  what  matters  are  within  the  jurisdiction  of  such  an  ad- 


142  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ministrative  body,  the  sufficiency  of  the  facts  found  to  sup- 
port the  award  made,  or  the  validity,  as  distinguished  from 
the  amount,  of  a  claim  under  the  act.715 

Three  conclusions  may  fairly,  albeit  tentatively,  be  drawn 
from  the  foregoing  review  of  judicial  decisions.  In  the  first 
place,  a  quasi-elective  act,  based  on  the  principle  of  occupa- 
tional risks  and  imposing  substantial  penalties  upon  those 
employers  and  employees  who  reject  the  statute,  is  not  a 
denial  of ' '  due  process  of  law ' '.  Upon  this  point  the  highest 
courts  of  Massachusetts,  Ohio,  and  Wisconsin  have  spoken 
with  decisive  voice ;  and  there  is  no  authority  to  be  quoted 
against  them.  It  seems  clear,  also,  that  litigious  proceed- 
ings and  jury  trials  under  such  legislation  may,  within  wide 
limits,  be  swept  away.  Finally,  a  compulsory  compensation 
or  insurance  act,  in  lieu  of  every  other  right  and  remedy,  is, 
at  least  when  restricted  to  hazardous  employments,  not  be- 
yond the  police  power  of  the  State. 

Greater  doubt  attaches  to  this  last  proposition  than  to 
either  of  the  foregoing.  The  validity  of  such  legislation  has 
been  upheld  by  the  supreme  courts  of  Montana  and  Wash- 
ington, and  denied  by  the  New  York  Court  of  Appeals  — 
notoriously  one  of  the  least  progressive  courts  in  the 
Union.716  The  acts  of  Massachusetts,  Ohio,  and  Wisconsin 
being,  at  least  nominally,  elective,  the  decisions  in  those 
States  are  not  directly  in  point.  It  is  scarcely  too  much  to 
say,  however,  that  the  three  statutes  last  named,  while  volun- 
tary in  form,  are  compulsory  in  effect.  A  compulsory  law 
gives  the  employer  a  Hobson  's  choice  of  accepting  the  stat- 
ute or  going  out  of  business;  these  so-called  elective  acts 
give  him  the  option  of  making  affirmative  election  or  losing 
his  chief  defenses  in  suits  for  damages.717  It  needs  no  gift 
of  prophecy  to  forecast  the  verdict  of  a  jury  when  proof  of 
negligence  proximately  connected  with  the  injury  is  the  sole 
condition  of  recovery  in  an  employer's  liability  action. 

If  the  employer  is  not  really  free  to  elect  under  these  so- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  143 

called  " voluntary"  acts,  the  workman  is  still  less  free.  If 
the  employer  elects  to  take  his  chances  with  damage  suits, 
the  employee  has  not  even  a  pro  forma  option.  Nor  is  his 
option  good  for  much  if  the  employer  brings  himself  within 
the  statute,  for  affirmative  election  on  the  part  of  workmen 
may,  and  probably  will,  be  made  a  condition  of  employment. 
In  Ohio,  the  act  is  even  avowedly  compulsory  upon  the  em- 
ployee, his  only  alternative  being  to  quit  the  service  of  an 
employer  who  subscribes  to  the  State  insurance  fund. 
While,  therefore,  these  acts  were  treated,  by  the  courts 
which  reviewed  them,  as  affording  free  election,  and  were  on 
this  ground  somewhat  elaborately  distinguished  from  the 
compulsory  law  of  New  York,  it  must  be  conceded  that  the 
distinction  rests  upon  an  insubstantial  difference. 

It  was  a  matter  of  course  that  courts,  concerned  not  to 
decide  more  than  was  necessary  to  uphold  the  validity  of  the 
acts  before  them,  should  have  made  much  of  the  non-coercive 
character  of  these  acts.  Accordingly,  the  suggestion  that 
the  penalties  upon  negative  election  might  work  practical 
compulsion  was  treated  as  "mere  speculation",718  and  it  was 
intimated  (truthfully  enough)  that  to  deprive  workmen  of 
their  right  to  sue  for  damages  under  the  unregenerate  com- 
mon law  was  to  take  from  them  nothing  of  substantial 
value.719  Yet  these  same  courts  dwelt  at  great  length  upon 
the  police  power  of  the  State  as  validating  the  legislation  in 
question  —  a  validation  not  needed  by  a  genuinely  voluntary 
act.  In  other  words,  the  courts  recognized  that  these  acts 
do  work  deprivation  of  property  to  be  justified  only  by 
reasons  of  public  policy  and  necessity. 

But  if  the  police  power  will  sanction  any  workmen's  com- 
pensation legislation,  surely  it  will  sanction  that  which  is 
best  calculated  to  effect  the  purpose  in  view.  That  a  com- 
pulsory law  is  more  effective  than  a  quasi-elective  act  is 
doubted  by  no  one  who  has  given  serious  attention  to  the 
subject.    It  is  difficult  to  see,  therefore,  how  a  quasi-elective 


144  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

statute  can  be  brought  within  the  police  power  by  any  line 
of  reasoning  that  would  not  apply  with  added  force  to  a 
frankly  compulsory  act. 

Where  the  constitutional  objections  to  a  new  departure  in 
legislation  are  drawn  from  the  broad  guarantees  of  the  Bill 
of  Rights,  the  court's  decision  will  greatly  depend  upon  the 
weight  allowed  to  the  economic  and  sociological  arguments 
in  favor  of  the  statute.  There  is  reason  to  believe,  there- 
fore, that  a  compulsory  law  would  be  sustained  by  any  court 
which  would  uphold  such  a  statute  as  that  of  Ohio  or  Wis- 
consin. On  the  other  hand,  a  tribunal  like  the  New  York 
Court  of  Appeals,  which  feels  itself  bound  to  prevent  dan- 
gerous innovations,720  would  have  little  trouble  in  finding 
that  the  Wisconsin  act  is  coercive  in  effect  and  that  it,  too, 
works  a  deprivation  of  property  without  due  process  of  law. 

Compulsory  mutual  or  State  insurance  appears  to  hold  a 
stronger  constitutional  position,  in  some  respects  at  least, 
than  compulsory  compensation.  Not  only  was  a  statute  of 
the  former  type  upheld  and  one  of  the  latter  kind  over- 
thrown, but  the  insurance  plan  seems  really  less  open  to  at- 
tack as  imposing  individual  liability  without  fault  and  it 
also  is  capable  of  being  construed  as  an  occupation  tax  upon 
industry,  proportional  to  the  hazards  thereof,  to  compensate 
injuries  arising  out  of  occupational  risks.721  State  insur- 
ance would  likewise  obviate  the  jury  trial  difficulty,  at  least 
as  respects  the  determination  of  claims  upon  the  State  fund, 
since  such  claims  are  not  causes  of  action. 

ESTIMATE  OP  INDEMNITY  LAWS 

The  indemnity  legislation  of  this  country  is  much  too 
recent  to  be  judged  from  its  practical  operation.  Expe- 
rience has  revealed  some  of  the  weaknesses  of  the  newly 
enacted  laws,  but  in  the  main  they  must  be  appraised  upon 
general  principles  and  by  analogy  with  similar  legislation 
of  Europe  which  has  been  put  to  the  test  of  time.    The  four- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  145 

teen  surviving  statutes  unquestionably  constitute  an  im- 
mense advance  upon  the  employers'  liability  systems  which 
they  partially  supersede.  It  is  no  less  clear  thai  none  of  the 
acts  yet  passed  approximates  a  definitive  solution  of  the 
accident  indemnity  problem.  In  what  follows  emphasis  will 
be  laid  upon  shortcomings  rather  than  excellencies,  not  in 
any  spirit  of  carping  criticism  but  with  the  hope  of  calling 
attention  to  mistakes  which  ought  to  be  avoided  in  future 
legislation. 

INADEQUACY 

Even  the  most  comprehensive  and  generous  of  American 
laws  are  narrower  in  scope  and  less  liberal  in  the  benefits 
provided  than  the  corresponding  legislation  of  European 
countries.  Particularly  unfortunate  in  this  connection  is  the 
consistent  failure  to  provide  adequate  medical  care  for  the 
injured  — a  type  of  benefit  which  probably  yields  larger 
returns,  in  proportion  to  its  cost,  than  any  other  form  of 
accident  relief.  Still  more  inexcusable  is  the  exclusion  of 
non-resident  alien  dependents  by  the  acts  of  Kansas,  New 
Hampshire,  New  Jersey,  and  Washington.722  There  is  no 
ethical  or  economic  justification  for  such  exclusion,  and  its 
practical  effect,  if  any,  is  to  impose  a  penalty  upon  the  em- 
ployment of  American  citizens. 

ELECTION 

The  elective  feature  common  to  eleven  of  the  fourteen 
existing  statutes  is  open  to  three  especially  grave  objections : 
it  greatly  lessens  the  remedial  value  of  the  legislation;  it 
works  unequal  justice  as  between  employees;  and  it  im- 
poses an  undistributed  burden  upon  employers. 

The  extent  to  which  a  quasi-elective  law  will  prove  opera- 
tive is  determined  mainly  by  the  pressure  which  it  exerts 
upon  the  employer  to  accept  its  terms.  In  practice  this  re- 
duces itself  to  the  relative  cost  of  insurance  within  and  with- 
out the  statute.     A  priori,  therefore,  it  would  be  expected 


146  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

that  those  acts  which  strip  the  employer  of  all  common  law 
defenses  unless  he  accepts  the  compensation  scheme  will  be 
much  more  effective  than  those  which  leave  one  or  more  of 
such  defenses  available  under  the  like  conditions.  The  mode 
of  election,  also,  is  of  some  importance:  where  affirmative 
rejection  is  required  many  employers  will  be  brought  within 
the  law  through  sheer  inertia.  The  employee's  option,  un- 
less he  is  permitted  to  elect  after  injury,  is  of  minor  conse- 
quence. Few  workmen  would  care  to  insist  upon  their  com- 
mon law  remedies  and  any  who  might  do  so  would  doubtless 
be  dismissed  from  the  service.  Lastly,  the  scale  of  benefits 
provided  by  the  compensation  scheme  is  an  important  con- 
sideration affecting  the  cost  to  employers  who  elect  there- 
under. 

These  deductions  are  fully  substantiated  by  such  ex- 
perience as  time  has  thus  far  afforded.  The  Wisconsin  stat- 
ute, it  will  be  remembered,  requires  affirmative  election, 
saves  the  most  valuable  of  all  defenses,  that  of  contributory 
negligence,  to  employers  who  remain  without  the  law,  and 
provides  a  liberal  scale  of  compensations.  The  result  is 
strikingly  shown  by  the  very  full  records  of  the  Industrial 
Commission.  Of  5238  accidents  reported  during  the  first 
year  as  having  caused  disability  for  seven  days  or  more, 
only  1332  or  25.4  per  cent,  fell  within  the  compensation 
law.723  The  percentage  is  higher  in  the  later  months,  being 
33.7  for  September,  1912; 724  but  the  great  majority  of  work 
injuries  remain,  and  probably  will  remain,  unindemnified. 

The  California  act  is  similar  to  that  of  Wisconsin  except 
that  it  establishes  the  rule  of  comparative  negligence  for 
employers  who  remain  under  the  common  law.  In  that  State 
4800  accidents  were  reported  between  April  1  and  October 
1, 1912,  whereof  but  358  were  within  the  compensation  act.725 
Twelve  months  after  the  law  went  into  effect  only  36,000 
workmen  had  been  brought  within  its  benefits.726  In  Illinois, 
where  affirmative  election  is  presumed  unless  the  employer 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  147 

serves  notice  to  the  contrary,  it  appears  that  the  larger  coal 
mine  operators  and  probably  a  majority  of  building  con- 
tractors have  rejected  the  statute,  whereas  most  manufac- 
turers have  acquiesced  therein.  No  records  exist  to  indicate 
what  proportion  of  employees  or  of  work  injuries  are  sub- 
ject to  compensation.727 

In  Massachusetts  the  abrogation  of  contributory  negli- 
gence and  the  relatively  cheap  insurance  provided  by  the 
mutual  association  have  sufficed  to  bring  within  the  act  79 
per  cent  of  the  employers  who  reported  work  accidents  dur- 
ing July  and  August,  1912.728  Five-sixths  of  the  deaths  in- 
curred during  the  same  months  were  compensated  in  accord- 
ance with  the  law.729  In  New  Jersey,  where  election  is 
presumed,  the  defense  of  contributory  negligence  abolished, 
and  a  rather  low  scale  of  compensations  established,  almost 
ninety  per  cent  of  the  2047  accidents  reported  between  July 
4,  1911,  and  February  10,  1912,  were  within  the  compensa- 
tion act.730  But  this  showing  is  probably  more  favorable 
than  the  facts  would  warrant.  The  New  Jersey  law,  like 
that  of  Massachusetts,  requires  all  injuries,  no  matter  how 
slight,  to  be  reported.731  If  12,800  injuries  occurred  in 
Massachusetts  in  two  months  732  more  than  2000  must  have 
occurred  in  New  Jersey  in  seven  months.  What  results 
would  be  revealed  by  complete  records  can  only  be  a  matter 
of  conjecture. 

The  foregoing  reports  cover  too  short  a  period  to  afford 
a  fair  test  of  the  quasi-elective  plan.  The  number  of  work- 
men protected  is  likely  to  be  small  at  first  and  to  attain  a 
maximum  only  after  some  years  have  elapsed.  None  the 
less,  two  facts  stand  out  clearly  from  even  this  brief  ex- 
perience: (1)  there  is  a  rather  close  correlation  between 
the  remedial  value  of  the  statutes  and  the  relative  cost  of 
compensation  and  liability  insurance  as  shown  by  Table 
VII;  and  (2)  even  the  most  stringent  quasi-elective  act  is 
far  from  attaining  the  effectiveness  of  a  compulsory  system. 


148  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Not  more  than  three  of  the  optional  statutes  protect  one- 
half  of  the  workmen  in  the  industries  to  which  they  apply. 

Unequal  justice  results  from  the  inclusion  of  some  and  the 
exclusion  of  other  workmen  exposed  to  similar  hazards  in 
the  same  industry.  Indemnity  for  accidental  injury  depends 
not  upon  a  uniform  law  applying  alike  to  all  under  like  con- 
ditions, but  upon  the  arbitrary  choice  of  the  employer.  To 
illustrate,  two  structural  iron  workers  in  Milwaukee  fall 
from  "reasonably  safe"  runways  and  are  killed.  The  de- 
pendents of  the  one  receive  $3,000  because  the  contractor  by 
whom  he  was  employed  had  accepted  the  Compensation  Act. 
The  other's  employer  had  chosen  to  remain  under  the  com- 
mon law ;  his  family  have  no  claim  to  compensation  because 
his  death  was  due  to  an  "  ordinary  risk"  of  his  employment. 
This  objection  to  the  quasi-elective  plan  was,  for  reasons 
already  indicated,  glossed  over  by  the  courts  which  have  had 
occasion  to  pass  upon  it ;  but  it  is  none  the  less  a  grave  de- 
fect in  any  system  of  law  which  aims  at  equal  justice.733 

Lastly,  by  the  quasi-elective  plan  producers  in  the  same 
industry  and  the  same  competitive  territory  are  subjected 
to  different  accident  costs  so  that  the  burden  of  indem- 
nity can  not  be  distributed  over  the  industry  nor  incorporat- 
ed in  the  price  of  the  product.  Insofar,  then,  as  the  cost  of 
compensation  exceeds  that  of  liability  insurance  the  extra 
burden  falls  without  recourse  upon  those  employers  who 
elect  to  compensate  work  injuries  irrespective  of  negligence. 

Against  these  assured  disadvantages  the  quasi-elective 
plan  can  oppose  only  the  debatable  merit  of  being  less  open 
to  attack  on  constitutional  grounds.  For  the  genuinely  op- 
tional laws  of  Maryland  and  New  York  nothing  can  be  said, 
except  that  they  are  perhaps  preferable  to  no  legislation. 

INSURANCE 

Perhaps  the  most  disappointing  feature  of  the  legislation 
thus  far  enacted  is  the  very  general  failure  to  provide  em- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  149 

cient  and  economical  insurance  of  liability  thereunder.  Ten 
of  the  American  statutes  are,  in  this  respect,  modeled  upon 
the  British  Workmen's  Compensation  Act,  and  eight,  at 
least,  have  all  the  defects  of  the  original.  The  Michigan  and 
New  Hampshire  laws  do,  indeed,  afford  partial  security  to 
injured  workmen;  but  they  practically  leave  the  employer 
to  the  tender  mercies  of  the  private  liability  companies. 
Even  the  so-called  insurance,  as  distinguished  from  the  com- 
pensation acts,  are  by  no  means  so  efficient  as  they  could  be 
made.  The  Massachusetts  Association  and  the  Ohio  Lia- 
bility Board  are  handicapped  by  the  elections  allowed  in 
those  States.  The  Washington  act  avoids  this  particular 
weakness,  but  possesses  two  grave  defects  of  its  own:  (1) 
the  risk  classes  and  premium  rates,  being  fixed  in  the  statute, 
lack  the  flexibility  so  needful  to  meet  the  ever  changing  con- 
ditions of  industry;  and  (2)  each  risk  group  is  required 
to  compensate  all  injuries  occurring  therein,  a  requirement 
which  is  equitable  enough  in  a  national  system  like  that  of 
Germany,  but  which  in  a  single  State  amounts  to  self -insur- 
ance for  some  of  the  smaller  industrial  groups. 

There  result  from  these  inadequate  insurance  provisions 
imperfect  protection  to  workmen  combined  with  needlessly 
high  cost  to  employers,  often  amounting  to  a  heavy  penalty 
upon  the  acceptance  of  the  compensation  plan. 

Not  more  than  four  of  the  fourteen  acts  provide  adequate 
protection  for  injured  workmen.  The  requirement  of  Michi- 
gan and  New  Hampshire  that  the  employer  make  a  showing 
of  solvency  is  by  no  means  equivalent  to  insurance.  A  busi- 
ness establishment  which  is  entirely  sound  to-day  may  be 
bankrupt  six  months  hence.  Failure  to  insure  is  the  more 
likely  to  occur  because  of  the  high  premiums  exacted  under 
most  of  the  compensation  laws. 

The  heavy  cost  of  the  new  laws  is,  in  large  part,  attribut- 
able to  the  inherent  wastefulness  of  competitive  liability  in- 


150 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


surance.  The  stock  companies  have,  to  be  sure,  reduced 
agents'  commissions  in  certain  States,  and  their  outlays 
for  litigation  should  likewise  decrease  under  the  new  sys- 
tem. But  the  experience  of  Great  Britain,  already  adverted 
to,  indicates  that  profits  and  expenses  may  be  expected  to 
absorb  at  least  one-half  of  the  premiums  paid  to  such  com- 
panies under  any  of  the  American  statutes. 

The  effect  of  mutual  or  State  insurance  is  apparent  from 
Table  VII.  It  will  be  observed  that  the  Ohio  State  rates  are 
but  two-fifths  of  the  stock  company  premiums  for  corre- 
sponding benefits  and  for  the  same  employments  in  Califor- 
nia and  Wisconsin.  Benefits  under  the  Washington  plan,  be- 
ing flat  monthly  pensions,  are  not  directly  comparable  with 
those  of  other  States,  but,  having  regard  to  the  general  level 
of  wages,  are  probably  not  lower,  on  the  average,  than  those 
provided  by  the  California  act.  The  cost  of  these  benefits  is 
only  three-fifths  as  much  in  the  former  State  as  in  the  latter, 
though  the  Washington  rates  yielded  a  heavy  surplus  during 
the  first  eight  months'  operation.73*  The  Wausau  Em- 
ployers' Mutual  of  Wisconsin  and  the  Massachusetts  In- 
demnity Association  likewise  appear  to  have  effected  large 

TABLE  VII 

RELATIVE  LEVEL  OF  INSURANCE  RATES  IN  56  EMPLOY- 
MENTS 735 


States 

Compensation 

Liability 

Insurance 

Insurance 

California 

100. 

40.8 

Illinois 

74.2 

91.2 

Kansas 

114. 

64.4 

Massachusetts  (liability  companies) 

71.8 

90. 

Michigan 

78.5 

78.5 

New  Hampshire 

60. 

35.5 

New  Jersey 

65.3 

64.3 

Ohio 

44. 

28.4 

Washington 

56.7 

Wisconsin 

100. 

45.9 

Wasuau  Mutual  (Wisconsin) 

44.8 

INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  151 

savings  to  their  members.  In  none  of  these  cases  has  suffi- 
cient time  elapsed  to  afford  an  adequate  test  of  the  several 
insurance  systems  but  the  brief  American  experience  in  this 
regard  is  fully  corroborated  by  that  of  European  countries 
and  both  substantiate  theoretical  conclusions  as  to  the  most 
economical  mode  of  accident  relief. 

From  a  public  point  of  view  the  gravest  objection  to  pri- 
vate liability  insurance,  coupled  with  a  quasi-elective  act,  is 
not  the  unnecessary  burden  thereby  imposed  upon  employ- 
ers, but  the  exclusion  of  workmen  from  the  benefits  contem- 
plated by  the  legislature.  Where  insurance  is  notably 
higher  within  than  without  the  compensation  acts  few  em- 
ployers are  likely  to  accept  the  indemnity  plan.  Such  is  the 
case  in  California,  Kansas,  New  Hampshire,  Ohio,  and  Wis- 
consin. The  same  condition  exists  with  respect  to  coal  mines 
in  Illinois  and  probably  also  as  to  most  employments  in 
Rhode  Island.  It  is  important  to  point  out,  in  this  connec- 
tion, that  relative  rates  are  not  governed  solely  by  the  re- 
spective provisions  of  the  compensation  and  liability  laws. 
Often  the  differences  from  one  State  to  another  are  purely 
arbitrary.  In  Ohio,  for  example,  the  employer  who  does  not 
subscribe  to  the  State  fund  loses  all  common  law  defenses. 
Liability  insurance  in  that  State  ought,  therefore,  to  be  as 
high  as  in  Massachusetts  and  higher  than  in  Illinois  or  Cali- 
fornia. The  abnormally  low  liability  rates  made  by  stock 
companies  in  Ohio  —  less  than  one-third  of  the  Illinois  or 
Massachusetts  rates  —  can  only  be  explained  by  their  desire 
to  defeat  the  State  insurance  plan.  In  California,  also,  the 
stock  companies  have  discriminated  against  the  law  in  a 
seemingly  arbitrary  fashion.  The  liability  law  is  the  same 
in  California  as  in  Illinois ;  and  the  accident  rate  is,  if  any- 
thing, higher  on  the  Pacific  Coast  than  in  the  Mississippi 
Valley,  yet  the  liability  premiums  in  these  two  States  are  as 
40  to  90.    Similarly,  there  is  no  apparent  economic  justifica- 


152  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

tion  for  the  relative  liability  rates  of  Massachusetts,  Michi- 
gan, and  New  Jersey. 

The  fact  is  that  the  liability  companies  have  at  stake  noth- 
ing less  than  their  future  existence  and  prosperity.  If  the 
German  or  Norwegian  examples  should  be  generally  fol- 
lowed in  the  United  States,  private  liability  insurance  will 
be  a  thing  of  the  past;  whereas,  if  the  English  plan  is 
adopted  by  a  majority  of  the  Commonwealths,  the  stock 
companies  will  flourish  as  never  before.  They  are  peculiar- 
ly tempted,  therefore,  so  to  adjust  their  premiums  as  to 
favor  some  and  penalize  other  types  of  legislation.  They 
can  even  afford  to  incur  a  temporary  loss  in  certain  States 
for  the  sake  of  influencing  legislative  action  elsewhere  — 
the  more  especially  since  losses  suffered  in  Ohio  may  be  re- 
couped in  Kansas  or  California.  Such  tactics  appear  to 
have  been  adopted  in  Ohio  with  the  result  that  only  25,000 
workmen  in  that  populous  industrial  State  were  brought 
within  the  protection  of  the  statute  during  the  first  ten 
months  of  its  operation.736 

Thus,  it  appears  that  nothing  short  of  compulsory  mu- 
tual or  State  insurance  can  in  the  long  run  be  satisfactory  to 
employers,  to  workmen,  and  to  the  general  public.  If  com- 
pensation is  compulsory  and  insurance  optional,  the  burden 
imposed  upon  industry  is  disproportionate  to  the  benefits 
received  by  accident  victims.  If  election  is  allowed,  even 
though  economical  insurance  is  provided  by  the  State  or  by 
a  mutual  association,  the  liability  companies  may  attempt 
to  defeat  the  legislative  intent  by  so  arranging  their  rates 
as  to  induce  employers  to  reject  the  compensation  plan.  If 
both  compensation  and  insurance  are  optional,  each  of  these 
evils  is  likely  to  result.  It  is  significant  in  this  connection 
that  the  Industrial  Accident  Board  of  California,  the  Indus- 
trial Commission  of  Wisconsin,  and  the  Ohio  Liability  Board 
have  alike  found  the  existing  laws  of  those  States  inadequate 
to  afford  the  relief  proposed  by  the  legislatures.737 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  153 

ACCIDENT  PREVENTION 

The  great  requisites  of  accident  prevention  are  scientific 
knowledge  of  the  causes  of  accidents  and  of  the  means  of 
preventing  them,  adequate  incentive  to  employ  every  known 
preventive,  and  efficient  administration  of  the  safety  laws 
and  regulations.  None  of  the  American  States  has  thus  far 
met  all  three  requirements.  Massachusetts  alone  is  compil- 
ing accident  records  adequate  to  the  purpose.  Only  "Wiscon- 
sin provides  thorough  administration  of  the  safety  statutes. 
Washington  is  equally  unique  in  enlisting  the  self-interest 
of  employers  on  the  side  of  safety.  Private  liability  insur- 
ance has  never  been  very  effective  in  this  respect.  True,  the 
liability  companies  have  rendered  good  service  in  diffusing 
information  as  to  accident  prevention,  and  they  also  impose 
nominal  penalties  in  the  way  of  higher  premiums  for  neglect 
of  safety  requirements.  But  the  prevalence  of  rebating  has 
hitherto  prevented  the  enforcement  of  these  penalties.  Lia- 
bility insurance  is  at  present  in  the  "gentlemen's  agree- 
ment" stage  of  pre-monopolistic  combination  and  exhibits 
many  of  the  practices  familiar  to  students  of  railway  his- 
tory. Published  tariffs  are  freely  departed  from  in  the 
scramble  for  new  business  and  large  employers  obtain  so 
many  concessions  that  insurance  rates  for  similar  risks  in 
the  same  State  vary  as  much  as  sixty-five  per  cent.738  Under 
such  conditions  rigorous  insistence  upon  safety  measures 
is  out  of  the  question.  The  Massachusetts  association  and 
the  Liability  Board  of  Ohio  are  equally  helpless:  the  em- 
ployer who  is  penalized  by  either  will  seek  refuge  with  a 
more  lenient  stock  company.  The  Ohio  board  apparently 
has  further  impaired  its  effectiveness  by  basing  its  differ- 
ential premiums  upon  the  actual  experience  of  particular 
establishments.739  Obviously  a  factory  may  run  for  years 
with  no  serious  accident  and  then  have  a  dozen  operatives 
killed  by  a  single  boiler  explosion.  The  only  just  or  ade- 
quate basis  of  differential  rates  is  the  degree  of  compliance 


154  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

with  definite  standards  of  safety  established  by  broad  sta- 
tistical experience. 

ADMINISTEATION 

Only  six  States  have  created  appropriate  machinery  for 
the  administration  of  their  compensation  laws.  In  view 
both  of  European  experience  and  of  the  fact  that  ordinary 
courts  are  not  equipped  to  cope  with  difficult  administrative 
problems,  the  failure  of  eight  States  to  establish  permanent 
Industrial  Accident  Boards  can  only  be  regarded  as  an  un- 
fortunate concession  to  the  prevalent  American  prejudice 
against  efficient  government.  Where  compensation  is  admin- 
istered by  courts  of  law  and  insurance  is  affected  through 
stock  companies  the  " ambulance  chaser"  and  the  claim  ad- 
juster will  continue  to  flourish  and  unconscionable  bargains 
will  continue  to  be  made  at  the  expense  of  accident  vic- 
tims. When  it  is  added  that  in  most  of  the  States  which 
have  adopted  quasi-elective  acts  the  common  law  still  applies 
to  a  majority  of  work  injuries,  it  will  be  seen  that  the  new 
indemnity  legislation  goes  but  a  short  way  toward  remedy- 
ing the  evils  it  was  designed  to  remove. 

In  justice  to  the  legislatures  and  to  the  commissions 
whose  work  is  under  review  it  should  be  said  that  many  of 
the  patent  shortcomings  of  the  existing  laws  are  due  to  the 
very  novelty  of  the  principles  adopted,  to  the  want  of  ade- 
quate data  upon  which  to  proceed,  to  inexperience  in  dealing 
with  like  problems,  and  to  the  lack  of  an  intelligent  public 
opinion  upon  the  subject.  The  work  of  the  commissions,  es- 
pecially, was  as  much  educational  as  investigative.  The  de- 
mand for  a  rational  indemnity  system  had  to  be  consoli- 
dated, and  in  good  part  created,  in  order  that  the  laws  pro- 
posed and  enacted  should  have  a  broad  basis  of  popular 
support.  For  analogous  reasons  most  European  nations 
began,  more  than  a  quarter  of  a  century  ago,  with  very  in- 


INDEMNITY  LEGISLATION  IN  THE  UNITED  STATES  155 

adequate  legislation  and  have  extended  the  scope  and  in- 
creased the  efficiency  of  their  indemnity  systems  by  suc- 
cessive amendments.  A  similar  course  will  doubtless  be 
followed  in  the  United  States.  The  student  may  regret  that 
the  people  of  this  country  should  profit  so  little  from  the  rich 
experience  of  Europe,  but  the  method  of  trial  and  error 
seems  to  be  the  approved  American  legislative  practice. 

Some  of  the  gravest  defects  in  the  newly  enacted  legisla- 
tion are  attributable  to  that  peculiar  interpretation  of  con- 
stitutional law  which  has  so  often  perverted  Magna  Charta 
and  the  Bill  of  Rights  into  barriers  to  social  progress.740  In 
certain  States  this  obstacle  may  have  to  be  overcome  by  the 
clumsy  and  inadequate  method  of  constitutional  amendment. 
Fortunately,  however,  an  increasing  number  of  the  higher 
courts  already  exhibit  a  pronounced  tendency  to  construe 
the  historic  charters  of  liberty  in  the  light  of  twentieth  cen- 
tury needs  and  ideals.  Indeed,  in  view  of  the  decisions 
actually  rendered  on  the  question  in  hand,  it  may  be  doubted 
whether  many  of  the  legislatures  were  not  too  timid  in  the 
face  of  constitutional  objections,  and  whether  more  adequate 
indemnity  laws  would  not  equally  have  been  sustained.741 


VII 
THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION 

Employers'  liability  reform  is  no  new  thing  in  Iowa.742 
The  railway  fellow-servant  statute  dates  from  1862  and  has 
repeatedly  been  amended  in  the  direction  of  greater  liberal- 
ity to  employees.  The  doctrine  of  assumption  of  risk  was 
modified  as  to  all  employments  in  1907  and  was  well-nigh 
abrogated  in  1909.  The  last  mentioned  year  witnessed  also 
the  establishment  of  the  rule  of  proportional  negligence  for 
certain  classes,  at  least,  of  railway  employees.  The  net 
result  of  all  this  legislation  is  satisfactory  to  neither  em- 
ployers nor  employees.  The  indemnity  of  work  accidents 
still  depends  upon  the  application  of  the  law  of  negligence, 
and  that  law,  in  Iowa  as  everywhere  else,  is  inadequate, 
slow,  haphazard  and  extremely  wasteful  in  operation.  The 
demand  for  a  rational  indemnity  system  has,  accordingly, 
waxed  strong  in  recent  years  and  has  been  quickened  by  the 
legislation  of  other  States  already  recounted.  Bills  looking 
to  the  enactment  of  a  quasi-elective  compensation  law  were 
introduced  in  the  Thirty-fourth  General  Assembly  743  and 
were  strongly  supported  by  the  Iowa  Federation  of  Labor. 
The  Manufacturers'  Association,  while  favoring  the  prin- 
ciple of  compensation,  opposed  these  particular  bills  as  ill- 
digested,  and  a  compromise  was  at  length  effected  744  which 
resulted  in  the  creation  of  an  Employers'  Liability  and 
Workmen's  Compensation  Commission.745 

As  members  of  this  Commission  the  Governor  appointed 
Senator  John  T.  Clarkson,  who  became  chairman,  Mr.  W.  W. 
Baldwin  of  the  Burlington  Railway,  Judge  John  L.  Stevens 
of  Boone,  who  represented  the  Manufacturers'  Association, 

156 


THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION    157 

Mr.  P.  S.  Billings,  representing  the  railway  trainmen,  and 
Mr.  John  0.  Staly,  a  coal  miner  though  not  an  official  repre- 
sentative of  the  United  Mine  Workers.  Mr.  Welker  Given 
of  Des  Moines  was  chosen  secretary. 

The  Commission,  having  before  it  the  results  obtained  by 
similar  bodies  in  other  States,  and  having  very  limited  time 
and  funds  at  its  disposal,  devoted  far  less  attention  to  the 
investigation  of  existing  evils  than  to  the  consideration  of 
the  remedies  it  was  created  to  devise.  The  original  investi- 
gation comprised:  (1)  collation  of  employers'  accident  rec- 
ords; (2)  a  study  of  employers'  liability  insurance  in  Iowa  ; 
(3)  an  analysis  of  indemnity  laws  in  this  country  and 
abroad;  (4)  an  inquiry  into  the  actual  working  of  recent 
indemnity  legislation  in  the  United  States;  and  (5)  ten  pub- 
lic hearings  for  the  taking  of  testimony  from  employers, 
employees,  and  other  interested  persons.746 

Accident  records  for  the  years  1909,  1910,  and  1911  were 
secured  from  300  Iowa  manufacturers  employing  18,416 
workmen.  The  number  of  injuries  reported  was  2304,  where- 
of 16  were  fatal,  2  caused  total  disability  for  life,  and  63  en- 
tailed permanent  impairment  of  earning  capacity.  There 
were  2214  cases  of  temporary  disability  involving  an  aggre- 
gate wage  loss  of  $50,738.  Of  the  300  manufacturers,  who 
reported,  230,  employing  15,589  workmen,  carried  liability 
insurance  at  a  cost  of  more  than  $100,000.  The  total  expense 
incurred  by  these  employers  on  account  of  work  accidents 
during  the  three  years  amounted  to  $178,725. 

The  growth,  extent,  and  working  of  employers'  liability 
insurance  in  Iowa  was  investigated  from  the  published  re- 
ports of  the  Auditor  of  State.  It  appeared  that  the  amount 
of  premiums  paid  for  such  insurance  in  this  State,  increased 
from  $56,471  in  1902  to  $280,577  in  1911.  The  aggregate  of 
premiums  collected  during  the  ten  year  period  was  $1,592,- 
770,  whereof  $814,037  was  paid  for  settlements  and  adjust- 
ment of  claims  —  a  decidedly  higher  proportion  than  in  the 


158  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

United  States  at  large.  How  much  of  this  amount  was  ac- 
tually received  by  injured  workmen  or  their  dependents  can 
not  be  told  from  the  data  at  hand.  Assuming  that  court 
costs,  contingent  attorneys'  fees,  adjusters'  salaries  and 
other  deductions  are  much  the  same  in  Iowa  as  in  other 
States,  the  amount  which  reached  the  ultimate  beneficiaries 
can  not  have  greatly  exceeded  one-third  of  the  sum  paid  out 
in  insurance  premiums.747 

Analyses  of  the  leading  indemnity  acts  of  the  United 
States  and  brief  summaries  of  certain  European  laws  were 
prepared  by  Chairman  Clarkson.  The  Commission  thus  had 
before  it  many  types  of  accident  relief  from  which  to  obtain 
suggestions  for  its  own  recommendations. 

Secretary  Given  visited  New  Jersey,  Ohio,  and  Illinois, 
and  reported  upon  the  practical  operation  of  the  recent  acts 
of  those  States.  Chairman  Clarkson  also  made  personal  in- 
vestigations in  Massachusetts,  New  York,  "Wisconsin,  and 
other  States.  Members  of  the  Commission  attended  the 
Chicago  conference  of  similar  bodies  in  October,  1911. 
Chairman  Pratt  of  the  Washington  Industrial  Insurance 
Commission  attended  the  first  public  hearing  at  Des  Moines 
and  explained  the  working  of  the  Washington  plan.  Launce- 
lot  Packer  of  Massachusetts,  Secretary  of  the  Federal  Com- 
mission, and  P.  Tecumseh  Sherman  of  New  York  likewise 
appeared  in  person  before  the  Iowa  Commission.  The  Com- 
mission also  obtained  opinions  from  many  experts  within 
and  without  the  State  and  a  constitutional  brief  from  Judge 
Nathaniel  French  of  Davenport.748 

Public  hearings  were  held  during  the  month  of  March, 
1912,  at  Des  Moines,  Council  Bluffs,  Sioux  City,  Fort  Dodge, 
Waterloo,  Dubuque,  Cedar  Eapids,  Davenport,  Burlington, 
and  Ottumwa.749  The  amount  of  new  facts  thus  elicited  was 
probably  not  great,  but  the  hearings  provided  a  valuable 
test  of  public  opinion  and  served  also  to  stimulate  interest 
in  the  proposed  legislation.    When  the  Commission  began 


THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION    159 

its  work  relatively  few  even  of  those  immediately  concerned 
in  the  problem  had  given  much  thought  to  the  question  of 
accident  relief.  It  was  necessary  to  evoke  inquiry  and  focus 
opinion  in  order  that  the  Commission's  recommendations 
might  have  a  broad  basis  of  popular  approval.  Widely 
varying  views  were  expressed  by  those  who  attended  the 
hearings,  but  it  is  interesting  to  note  that  few  employers, 
and  fewer  workmen,  were  opposed  to  the  principle  of  com- 
pensation irrespective  of  fault. 

The  chief  task  before  the  Commission  was,  of  course,  the 
framing  of  a  legislative  measure  which  should  provide  rea- 
sonably adequate  relief  to  workmen  without  unduly  burden- 
ing employers  and  which  should  prove  acceptable  to  the 
chief  parties  in  interest.  In  pursuance  of  this  task  the  Com- 
mission examined  the  leading  indemnity  systems  both  of  the 
United  States  and  of  foreign  countries,  and  exercised  a  most 
catholic  election  in  selecting  proposals  for  endorsement. 
The  merits  of  its  recommendations  may  be  judged  from  the 
ensuing  summary.  Discussion  is  deferred  to  the  concluding 
chapter. 

THE  COMMISSION'S  BILL  tso 

The  bill  endorsed  by  a  majority  (four  members)  of  the 
Commission  may  be  characterized  as  providing  a  quasi-elec- 
tive mutual  insurance  system,  more  nearly  resembling  the 
Massachusetts  plan  than  any  other  yet  adopted  in  this  coun- 
try. The  closest  European  analogy  is  afforded  by  the  com- 
pulsory laws  of  Luxemburg  and  Switzerland. 

BASIS  OF  INDEMNITY 

The  Commission's  bill  contemplates  indemnity  irrespec- 
tive of  fault,  except  as  to  injuries  sustained  while  the  in- 
jured person  was  intoxicated  or  caused  by  "the  employee's 
wilful  intention  to  injure  himself  or  to  wilfully  injure  an- 
other" (Section  2). 


160  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

SCOPE  OF  INDEMNITY 

The  proposed  act  applies  to  all  employments  (Section  1 
a) ;  to  the  State  and  its  subdivisions  (Section  1  b),  and  to  all 
private  employers  who  employ  five  or  more  workmen  in  the 
same  common  enterprise  (Section  la) ;  to  all  employees  ex- 
cept those  engaged  in  a  clerical  or  official  capacity  and  cas- 
uals not  employed  for  the  purpose  of  trade  or  business  (Sec- 
tion 17  b) ;  and  to  all  personal  injuries  arising  out  of  and  in 
the  course  of  the  employment  (Section  1).  All  employees 
engaged  "in  the  execution  of  the  work,  whether  under  the 
first  or  any  one  of  sub-contractors  shall  be  regarded  as  en- 
gaged in  one  joint  enterprise  or  business"  (Section  7  c). 

ELECTION 

The  proposed  act  is  compulsory  upon  public  bodies  and 
their  employees.  Every  private  employer  within  the  terms 
of  the  compensation  plan  is  presumed  to  have  accepted  the 
same  unless  he  makes  affirmative  rejection  by  serving  notice 
upon  his  employees  and  upon  the  Industrial  Commission  of 
Iowa  (Section  1).  The  employee's  acceptance  is  likewise 
presumed  in  the  absence  of  similar  affirmative  rejection 
(Section  3).  If  the  employer  rejects  the  act,  he  loses  the 
defenses  of  fellow-servant,  assumption  of  risk,  and  contrib- 
utory negligence,  and  has  the  burden  of  proof  to  show  that 
any  injury  sustained  in  his  service  was  not  proximately 
caused  by  his  negligence  (Section  1) ;  whereas  the  existing 
common  law  defenses  are  saved  to  employers  who  accept  the 
act  (Section  3  b).  The  compensations  provided  are  exclu- 
sive of  other  rights  and  remedies  as  between  employers  and 
employees  who  do  not  reject  the  act  (Section  3  a),  but  the 
Employers'  Indemnity  Association  has  a  right  of  action  to 
recover  compensations  paid  on  account  of  injuries  caused 
by  the  employer's  violation  of  the  safety  statutes  (Section 
21). 


THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION    161 
SCHEDULES  OF  COMPENSATION 

The  employer,  upon  the  request  of  the  injured  workman, 
or  upon  the  order  of  a  court,  or  of  the  Industrial  Commis- 
sion, is  required  to  furnish  "reasonable  surgical,  medical 
and  hospital  services  and  supplies,  for  four  weeks  after  the 
injury,  to  an  amount  not  exceeding  $100"  (Section  10  b). 

The  expenses  of  last  sickness  and  burial,  to  the  amount 
of  $100  are  to  be  paid  by  the  employer  in  all  cases  of  injury 
resulting  in  death.  If  the  employee  leaves  no  dependents 
this  is  the  only  compensation  unless  the  fatal  injury  was 
caused  by  the  employer's  failure  to  comply  with  legal  safe- 
ty requirements,  in  which  case  full  death  benefits  must  be 
paid  to  the  Indemnity  Association  (Section  10  c). 

A  weekly  pension,  equal  to  sixty  per  cent  of  the  deceased's 
wages,  but  not  less  than  $5  nor  more  than  $12  per  week,  for 
three  hundred  weeks,  is  granted  to  persons  wholly  depend- 
ent upon  a  workman  who  dies  as  the  result  of  a  work  injury 
(Section  10  d).  Pensions  to  partial  dependents  are  pro- 
portional to  the  support  received  from  the  deceased  (Sec- 
tion 10  e).  A  surviving  spouse,  unless  the  survivor  had 
wilfully  deserted  the  deceased,  a  child  or  children  under 
sixteen,  and  the  parent  of  a  minor  if  entitled  to  the  wages 
of  the  deceased,  are  conclusively  presumed  to  be  wholly  de- 
pendent. Other  cases  of  dependency  are  to  be  determined 
in  accordance  with  the  facts  existing  at  the  time  of  the  in- 
jury (Section  17  c). 

Temporary  disability  benefits  are  sixty  per  cent  of  wages, 
but  not  more  than  $12  nor  less  than  $5  per  week  for  300 
weeks.  Total  permanent  disability  benefits  are  the  same 
amount  for  400  weeks ;  but  if  incapacity  continues  after  the 
expiration  of  that  period,  a  life  pension  is  granted  of  not 
less  than  $10  nor  more  than  $25  per  month  (Section  10  h  and 
i). 

Fixed  percentages  of  wages,  subject  to  the  same  maximum 
and  minimum  as  above,  are  paid  for  certain  enumerated 


162  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

bodily  injuries  causing  permanent  impairment  of  earning 
capacity  (Section  10  A;). 

No  compensation  is  paid  for  the  first  two  weeks  incapac- 
ity, nor  for  any  injury  which  does  not  produce  disability 
for  at  least  two  weeks  (Section  10  g). 

Compensations  due  under  the  act  are  a  preferred  lien 
upon  all  the  property  of  the  employer  and  are  exempt  from 
attachment,  levy,  execution,  garnishment,  or  satisfaction  of 
debts  (Section  20).  Pensions  are  commutable  into  lump 
sums  only  with  the  consent  of  the  Industrial  Commission  or 
of  the  District  Court  of  the  county  wherein  the  injury  oc- 
curred (Section  15).  There  is  the  usual  provision  for  med- 
ical examination  of  invalid  pensioners  upon  the  request  of 
the  employer  concerned  (Section  12). 

BURDEN  OF  INDEMNITY 

The  whole  burden  of  indemnity  payments  is  placed  upon 
the  employer,  and  it  is  expressly  provided  that  compensa- 
tions due  under  the  act  "shall  not  be  in  any  way  reduced 
by  contribution  from  employees"  (Section  13). 

CONTRACTING  OUT 

Contracting  out  of  liability  under  the  proposed  act  is  not 
permitted  upon  any  terms  whatever,  and  "no  employee  or 
beneficiary  shall  have  power  to  waive  any  of  the  provisions 
of  this  Act  in  regard  to  the  amount  of  compensation"  pay- 
able thereunder.  Withholding  any  part  of  an  employee's 
wages  to  provide  insurance  against  liability  under  the  com- 
pensation plan  is  made  a  finable  offense  (Section  18).  Any 
contract  or  settlement  between  an  employer  or  his  represent- 
ative and  a  beneficiary  made  within  twelve  days  after  an 
injury  is  presumed  to  be  fraudulent  (Section  19). 

INSURANCE 

Every  private  employer  of  five  or  more  workmen  in  the 
same  general  employment  who  does  not  expressly  reject  the 


THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION  163 

compensation  plan  thereby  becomes  a  member  of  the  Em- 
ployers' Indemnity  Association,  an  unincorporated  body, 
which  assumes  for  its  members  all  liability  under  the  Com- 
pensation Act.  The  Association  is  to  be  governed  by  a 
board  of  ten  directors,  appointed  in  the  first  instance  by 
the  Governor  and  thereafter  elected  by  the  general  meeting. 
Each  member  has  one  vote  in  the  general  meeting,  and  one 
additional  vote  for  each  five  hundred  employees  subject  to 
the  act;  but  no  member  may  cast,  in  his  own  right  or  by 
proxy,  more  than  twenty  votes.  The  board  of  directors, 
subject  to  the  approval  of  the  Industrial  Commission,  are 
authorized  to  distribute  the  members  into  risk  groups,  to 
fix  premium  rates  for  each  group  and  make  rules  for  the 
prevention  of  injuries.  Ten  per  cent  of  the  premiums  col- 
lected must  be  placed  in  a  reserve  fund  until  the  sum  of 
$1,000,000  is  accumulated.  Until  the  reserve  reaches  $100,- 
000  the  risks  must  be  reinsured  in  one  or  more  liability  com- 
panies approved  by  the  Industrial  Commission  (Part  III). 

ADMINISTKATION 

The  bill  creates  an  Industrial  Commission  of  three  mem- 
bers to  be  appointed  for  ten  years  by  the  Governor  and 
Senate  from  a  list  of  fifteen  nominees  to  be  submitted  by  the 
Supreme  Court  (Section  24).  All  recommendations  for  ap- 
pointment must  be  in  writing,  signed  by  the  person  making 
the  recommendation,  and  filed  for  public  inspection  (Section 
41).  No  member  of  the  Industrial  Commission  may  serve 
on  any  political  party  committee,  or  "espouse  the  election 
or  appointment  of  any  person  for  political  office",  or  con- 
tribute to  the  campaign  fund  of  any  party  or  candidate, 
and  no  candidate  for  appointment  may  make  any  prom- 
ises in  return  for  the  support  of  his  candidacy  (Sections  39, 
40).  The  Commission  is  authorized  to  make  rules  for  car- 
rying out  the  provisions  of  the  compensation  act,  to  sub- 
poena witnesses,  administer  oaths,  and  examine  books  and 


164  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

records  pertaining  to  cases  before  it.  It  has  general  super- 
visory powers  over  the  Indemnity  Association,  and  dis- 
charges important  functions  in  the  adjudication  of  claims. 

ADJUDICATION  OF  CLAIMS 

The  Commission's  recommendations  under  this  head  may 
most  conveniently  be  stated  as  a  series  of  propositions. 

If  the  employer  and  a  beneficiary  reach  an  agreement  as 
to  the  compensation  due  under  the  act,  a  memorandum 
thereof  must  be  submitted  to  the  Industrial  Commission 
and  if  approved  by  it  becomes  enforcible  for  all  purposes. 
But  no  agreement  may  be  approved  unless  in  accordance 
with  the  terms  of  the  act  (Section  27). 

In  the  event  of  failure  to  reach  an  agreement,  the  dispute 
shall  be  referred  to  an  Arbitration  Committee  of  three  per- 
sons with  a  member  of  the  Commission  as  chairman.  The 
Arbitration  Committee,  aided  by  a  physician  when  neces- 
sary, shall  investigate  the  claim  and  make  an  award  which, 
unless  appealed  from  within  five  days,  is  binding  upon  the 
parties.  The  arbitrators'  fees  are  divided  equally  between 
the  employer  and  the  claimant.  All  other  costs,  including 
a  fee  of  not  more  than  $50  for  the  claimant's  attorney,  shall 
be  taxed  to  the  losing  party  (Sections  28-33). 

Upon  the  demand  of  either  party,  if  made  within  five  days, 
the  Industrial  Commission  shall  review  the  decision  of  the 
Arbitration  Committee  and  may  revise  the  same  in  whole 
or  in  part  or  refer  the  matter  back  to  the  Committee  for 
further  findings  of  fact  (Section  34). 

Any  party  in  interest  may  present  certified  copies  of  an 
order  or  decision  of  the  Industrial  Commission,  or  of  the 
award  of  an  Arbitration  Committee,  from  which  no  appeal 
has  been  taken  within  five  days  of  its  rendition,  or  of  an 
agreement  to  the  District  Court  of  the  county  wherein  the 
injury  occurred,  whereupon  said  court  shall  enter  a  decree 


THE  IOWA  EMPLOYERS'  LIABILITY  COMMISSION  165 

in  accordance  therewith  as  if  the  matter  had  been  heard  and 
determined  in  said  court  (Section  35). 

There  shall  be  no  appeal  from  any  decree  entered  as  above 
upon  any  question  of  fact,  nor  from  any  decree  based  upon 
the  award  of  an  Arbitration  Committee  or  a  memorandum 
of  agreement  (Section  35). 

Fees  of  attorneys  and  physicians  for  services  under  the 
Act  are  subject  to  the  approval  of  the  Industrial  Commis- 
sion (Section  37). 

MINORITY  REPORT 

Mr.  W.  W.  Baldwin,  being  unable  to  accept  the  insurance 
plan  or  the  administrative  machinery  proposed  by  a  major- 
ity of  the  Iowa  Commission,  submitted  a  separate  bill.  Mr. 
Baldwin's  draft  looks  to  a  compulsory  compensation  act, 
limited  to  employers  of  five  or  more  persons,  and  admin- 
istered by  the  ordinary  courts.  Liability  is  placed  directly 
upon  the  employer,  and  insurance  is  permissive  only.  Con- 
tracting out  is  allowed  if  the  employer  provides  a  relief 
scheme  certified  by  the  Auditor  of  State  as  not  less  favor- 
able to  the  workmen  than  the  compensation  act.  Indemnity 
for  total  disability  begins  on  the  fifteenth  day  after  the  in- 
jury and  is  fifty  per  cent  of  average  wages,  but  not  less 
than  $5  nor  more  than  $10,  for  a  period  of  not  more  than 
four  hundred  weeks.  Fixed  compensations  are  provided  for 
certain  dismemberments.  Death  benefits  vary  with  the  num- 
ber of  dependents  and  the  degree  of  dependency,  but  can  not 
exceed  fifty  per  cent  of  the  average  earnings  of  the  deceased 
for  three  hundred  weeks  nor  a  total  of  $3,000.  Dependents 
not  resident  in  the  United  States  or  Canada  are  excluded 
except  that  a  non-resident  widow  may  receive  not  more  than 
312  days'  wages  of  the  deceased.  A  funeral  benefit  of  $100 
is  payable  only  where  there  are  no  dependents.  A  peculiar 
feature,  not  likely  to  find  favor  with  wage-workers,  is  the 
provision  for  county  medical  relief. 


166  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Certain  omissions  in  Mr.  Baldwin's  bill  are  noteworthy. 
While  wilful  negligence,  intoxication,  or  removal  of  a  safety 
device  by  the  injured  employee  is  a  bar  to  recovery,  no  ad- 
ditional liability  is  imposed  for  the  employer's  wilful  wrong 
or  for  his  violation  of  the  safety  laws.  There  is  no  provi- 
sion for  the  non-litigious  determination  of  claims,  except 
by  voluntary  agreements  between  employers  and  claimants, 
nor  is  there  any  administrative  or  judicial  control  of  such 
agreements  adequate  to  prevent  unfair  or  oppressive  settle- 
ments. There  is,  however,  provision  for  the  summary  hear- 
ing, without  jury  trial,  of  compensation  controversies ;  and 
the  findings  of  the  district  court  are  reviewable  only  on 
questions  of  law.  The  fees  of  claimants'  attorneys  are  sub- 
ject, as  in  most  compensation  acts,  to  the  approval  of  the 
trial  judge.  A  unique  provision  requires  the  County  At- 
torney, without  charge,  to  represent  claimants  in  all  court 
proceedings.  Claims  to  compensation  enjoy  no  preference 
over  other  debts  of  the  employer  nor  are  compensations  due 
or  paid  exempted  from  assignment  or  seizure. 


VIII 

SOME  STANDARDS  OF  INDEMNITY  LEGISLATION 

Both  the  principle  upon  which  the  indemnity  of  work  ac- 
cidents should  be  based,  and  the  most  efficient  mode  of  giving 
effect  thereto,  may  be  said  to  have  been  settled  by  the  expe- 
rience of  Europe  and  America  and  by  the  researches  of  many 
students.  The  most  important  desiderata  have  been  sug- 
gested in  the  foregoing  pages ;  but  a  restatement  of  the  main 
points  will  at  once  serve  to  summarize  the  results  of  the 
present  inquiry  and  incidentally  afford  a  standard  for  com- 
parison with  the  recommendations  of  the  Employers'  Lia- 
bility Commission.  The  legislator,  of  course,  is  bound  to 
consider  not  only  what  is  desirable  but  what  is  expedient  in 
view  of  constitutional  limitations  and  of  the  current  state  of 
public  opinion.  None  the  less,  it  is  highly  desirable  to  adopt 
correct  principles  at  the  outset.  Details  can  readily  be 
filled  in  or  modified  as  experience  may  suggest,  but  an  entire 
change  of  system  can  only  be  effected  with  much  loss,  delay, 
and  inconvenience.  Accordingly,  an  attempt  will  be  made 
in  what  follows  to  define  the  standards  to  which  the  indem- 
nity of  work  injuries  should  approximate,  to  point  out  the 
limitations  which  prevent  the  present  realization  of  these 
standards  in  Iowa,  and  to  indicate  certain  features  which 
appear  suitable  for  immediate  adoption  here. 

PRINCIPLE   OF  INDEMNITY 

In  the  first  place,  there  can  be  no  reasonable  doubt  that 
the  principle  of  occupational  risks  should  form  the  basis  of 
accident  indemnity.  This  principle  has  been  endorsed  by 
both  organized  labor  and  organized  capital ;  by  the  American 

167 


168  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Federation  of  Labor  and  the  National  Association  of  Man- 
ufacturers, by  the  railway  brotherhoods,  by  the  Steel  Cor- 
poration, and  by  the  International  Harvester  Company.751 
It  forms  the  basis  of  the  indemnity  legislation  of  twenty-six 
foreign  governments,752  and  of  sixteen  of  the  United  States, 
and  has  been  recommended  for  adoption  by  every  investiga- 
tive commission  that  has  thus  far  reported  in  this  country. 
So  generally,  indeed,  has  this  principle  been  approved  by 
students  of  political  science,  sociologists,  jurists,  and  states- 
men that,  in  the  language  of  the  Supreme  Court  of  Wash- 
ington, "to  assert  to  the  contrary  is  to  turn  the  face  against 
the  enlightened  opinion  of  mankind".753 

PLAN  OF  INDEMNITY 

There  is  just  as  little  question,  in  the  second  place,  that  the 
principle  of  occupational  risks  can  be  given  full  effect  only 
through  universal,  compulsory  insurance,  conducted  either 
by  the  State  or  by  a  mutual  employers'  association  under 
State  supervision.  No  system  which  imposes  liability  upon 
the  individual  employer  can  distribute  the  cost  of  accident 
indemnity  over  the  whole  industry  and  place  the  ultimate 
burden  where  it  concededly  belongs  —  upon  the  consumers 
of  the  products.  No  insurance  in  competing  stock  compan- 
ies can  be  economical  in  operation  or  can  eliminate  uncon- 
scionable settlements  and  hard  bargains  or  can  be  efficient 
in  the  all-important  matter  of  preventing  accidents.  Such 
is  the  conclusion  of  Messrs.  Schwedtman  and  Emery  who 
made  an  elaborate  investigation  of  European  compensation 
systems  on  behalf  of  the  National  Association  of  Manufac- 
turers,754 of  Lee  K.  Frankel  and  Miles  M.  Dawson  who  made 
a  similar  study  under  the  auspices  of  the  Russell  Sage 
Foundation,755  and  even  of  those  employers'  liability  com- 
missions who,  on  grounds  of  constitutionality,  thought  fit  to 
recommend  a  different  system.756  Such,  too,  is  the  unan- 
imous testimony,  not  only  of  the  great  German  authori- 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   169 

ties,757  but  of  French  and  English  students  as  well.758  France, 
after  twelve  years'  experience  with  a  liability  system  of  the 
British  type,  adopted,  in  1910,  a  law  based  on  the  German 
model.  It  is  notorious  that  the  British  people  are  dissatis- 
fied with  the  working  of  their  compensation  law.759  To  re- 
ject the  plan  of  compulsory  mutual  or  State  insurance  is, 
therefore,  deliberately  to  adopt  a  system  of  proven  infe- 
riority. 

COMPULSION  OR  ELECTION 

Compensation  should  be  compulsory  in  order  that  all 
workmen  intended  to  be  included  shall  be  brought  within  the 
protection  of  the  proposed  legislation.  The  shortcomings 
of  the  quasi-elective  plan  have  already  been  pointed  out  in 
some  detail.  Unless  the  scale  of  compensation  is  relatively 
low,  and  the  liability  of  employers  who  reject  the  compensa- 
tion plan  extremely  rigorous  —  unless,  in  other  words,  in- 
surance is  cheaper  within  than  without  the  act  —  relief  will 
be  provided,  as  in  California  and  Wisconsin,  for  but  a  minor- 
ity of  work  accidents.  And  if  State  or  mutual  insurance  is 
attempted,  the  liability  companies,  for  reasons  already  ex- 
plained, may  induce  employers  to  reject  the  plan  by  insuring 
them  at  a  loss  until  such  time  as  the  act  is  repealed  or  modi- 
fied. The  Ohio  plan  has  failed  at  this  point  and  a  similar 
weakness  seems  to  inhere  in  the  scheme  proposed  by  the 
Iowa  Commission.  It  is  extremely  doubtful  whether  ade- 
quate indemnity  and  economical  insurance  can  be  secured  by 
anything  short  of  outright  compulsion. 

At  best,  therefore,  the  quasi-elective  plan  is  a  makeshift, 
to  be  justified,  if  at  all,  only  by  the  fear  that  the  courts  will 
overthrow  a  compulsory  act.  It  is  on  this  ground  alone 
that  any  legislature  has  enacted,  or  any  commission  recom- 
mended, a  quasi-elective  law.  With  respect  to  the  grave 
constitutional  difficulties,  expert  opinion  is  divided.  The 
New  York  precedent  did  not  deter  Arizona  from  adopting, 
nor  the  Federal  Commission  from  proposing,  a  compulsory 


170  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

plan.  Many  able  constitutional  lawyers  are  committed  to 
the  view  that  compulsory  compensation  is  not  a  denial  of  due 
process  of  law.760  There  is,  perhaps,  even  stronger  ground, 
in  view  of  the  Washington  and  Montana  decisions,  for  be- 
lieving that  a  compulsory  insurance  act  would  be  sustained. 
On  the  other  hand,  the  quasi-elective  plan  might  be  success- 
fully attacked,  before  an  unfriendly  court,  as  establishing 
unequal  justice.  Logically,  indeed,  the  semi-compulsory 
acts  which  have  been  upheld  are  as  open  to  the  due  process 
objection  as  the  New  York  statute  which  was  overthrown. 

The  very  reasoning  of  the  New  York  Court  of  Appeals 
may  be  applied  with  scarce  a  change  of  phraseology  to  the 
vital  feature  of  the  quasi-elective  plan  —  the  conditional 
abrogation  of  the  common  law  defenses.  When  the  Consti- 
tution of  Iowa  was  adopted  it  was  the  law  of  the  land  that 
the  master  is  not  answerable  to  one  servant  for  the  fault  of 
another,  that  no  person  can  recover  for  an  injury  to  which 
his  own  want  of  care  in  any  degree  contributed,  and  that  the 
plaintiff  has  the  burden  of  proof  to  show  that  his  injury  was 
approximately  caused  by  the  defendant's  negligence.  If 
these  rules  of  law  can  be  swept  away  by  legislative  fiat,  as  is 
proposed  in  the  Commission's  bill,  why  not  also  that  other 
rule  of  no  liability  without  fault?  All  alike  are  judge-made 
law,  all  are  comparatively  recent  innovations  upon  the  prim- 
itive rule  of  absolute  liability  and  all  embody  the  economic 
beliefs,  and  reflect  the  economic  conditions,  of  a  by-gone  age. 
If  any  of  these  principles  is  indispensable  to  due  process  of 
law,  the  others  should  be  equally  unchangeable. 

The  New  York  decision  was  pronounced  by  an  ultra-con- 
servative court  at  a  time  when  modern  indemnity  legislation 
was  a  new  thing  in  the  United  States.  The  precedent  thus 
established  has  not  been  followed  elsewhere :  it  was  express- 
ly refuted  by  the  Supreme  Court  of  Washington,761  and 
seems  to  be  out  of  line  with  repeated  decisions  of  the  United 
States  Supreme  Court  upon  the  requirements  of  due  process 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    171 

—  decisions  which,  by  the  way,  were  treated  with  scant 
courtesy  by  the  New  York  Court  of  Appeals.702  The  Su- 
preme Court  of  Iowa  is  far  from  reactionary,  and  Bound 
principles  of  accident  relief  are  no  longer  novel  to  the  bench 
and  bar.  It  would  seem  unnecessary,  therefore,  to  forego 
the  very  great  advantages  of  compulsion  on  the  chance  that 
an  obligatory  act  would  be  invalidated  by  any  court  which 
would  be  likely  to  sustain  so  stringent  a  statute  as  that  pro- 
posed by  the  Iowa  Commission. 

If,  on  constitutional  grounds,  the  quasi-elective  plan  is  to 
be  adopted,  the  Iowa  Commission's  proposals  are  all  that 
could  be  desired.  Three  of  the  recommendations  made  de- 
serve particular  comment.  (1)  The  presumption  that  both 
employers  and  employees  have  accepted  the  act  unless  they 
affirmatively  reject  it  enlists  inertia  on  behalf  of  the  law. 
It  is  much  more  effective  for  the  purpose  in  view  than  the 
requirement  of  affirmative  election.  (2)  The  doctrine  of 
contributory  negligence  is  the  most  important  defense  of 
the  ordinary  employer  in  liability  actions,  being  fatal  to  re- 
covery in  about  two-fifths  of  all  personal  injury  cases.  Its 
conditional  abrogation,  as  proposed  by  the  Iowa  Commis- 
sion, is  vital  to  the  success  of  a  quasi-elective  plan.  (3) 
The  reversal  of  the  burden  of  proof  in  employers'  liability 
cases  appears  to  be  original  with  the  Iowa  Commission. 
Every  one  who  is  familiar  with  this  class  of  litigation  knows 
the  difficulty  which  plaintiffs  experience  in  obtaining  testi- 
mony and  the  number  of  cases  that  are  taken  from  the  jury 
for  want  of  prima  facie  proof.  Placing  the  burden  upon  the 
employer  will  greatly  facilitate  recovery.  The  constitu- 
tionality of  these  provisions  was  conceded  even  by  the  New 
York  Court  of  Appeals  763  and  appears  to  be  beyond  success- 
ful attack. 

It  would  hardly  be  possible  to  go  further  than  the  Com- 
mission has  gone  in  modifying  the  common  law  without  im- 


172  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

posing  liability  regardless  of  fault.  A  priori,  it  might  be 
supposed  that  no  employer  would  care  to  take  his  chances 
with  the  law  as  thus  modified,  and  that  practical  compulsion 
has  been  effected  under  the  form  of  free  election.  Such, 
probably,  will  be  the  result  unless  stock  companies  should 
decide  to  carry  even  this  extraordinary  liability  at  low  rates 
in  order  to  defeat  the  Commission's  insurance  plan. 

EXCLUSION  OF  OTHER  REMEDIES 

The  compensations  provided  ought  to  be  exclusive  of 
every  other  remedy  as  against  employers  within  the  act. 
Any  other  course  would  expose  a  compulsory  statute  to 
attack  as  imposing  an  unreasonable  double  liability.764  Even 
under  an  elective  plan,  the  employer  who  has  paid  his  quota 
into  a  common  fund  should  not,  in  fairness,  be  subjected  to 
damage  suits  for  mere  negligence.  Accordingly,  the  Iowa 
Commission  has  proposed  that  the  act  shall  be  exclusive  of 
other  remedies  as  between  employers  and  workmen  who  fail 
to  reject  its  terms.  Employees  who  do  reject  the  plan  can 
not,  of  course,  be  barred  from  their  right  of  action.  It  can 
and  should  be  provided,  however,  that  the  Indemnity  Asso- 
ciation shall  defend  all  such  suits  against  its  members.  The 
form  of  policy  prescribed  in  the  Commission's  bill  (Section 
55)  probably  covers  this  liability,  but  the  language  might, 
perhaps,  be  made  more  explicit.  If  State  insurance  is  to  be 
adopted,  a  similar  provision  should  be  incorporated. 

What  has  been  said  as  to  exemption  from  liability  for 
ordinary  negligence  does  not  apply  to  the  employers'  viola- 
tions of  safety  laws.  The  State  fund  or  the  Indemnity 
Association  should  have  the  right  to  recover  compensations 
paid  on  account  of  injuries  caused  by  such  violations. 

INSURANCE 

The  advantages  of  compulsory  and  exclusive  State  or 
mutual  insurance  have  repeatedly  been  emphasized  in  these 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   173 

pages,  but  the  point  is  so  important  that  some  further  space 
may  properly  be  devoted  to  its  consideration. 

Compulsory  insurance  makes  it  certain  that  compensation 
will  be  paid  when  due,  and  enables  payments  to  be  made  with 
safety  in  the  form  of  pensions  rather  than  in  lump  sums. 
The  requirement  that  the  employer  who  does  not  insure  shall 
make  a  showing  of  solvency  to  some  administrative  board 
(the  Michigan  and  New  Hampshire  plan)  is  but  a  partially 
effective  substitute.  Nothing  short  of  an  indemnity  bond 
would  provide  adequate  security  —  and  such  a  bond  would 
be  a  clumsy  and  expensive  mode  of  insurance. 

If  insurance  is  to  be  required  some  economical  and  efficient 
substitute  for  the  stock  companies  must  be  provided.  Com- 
mercial liability  insurance  is  too  wasteful  to  be  tolerated. 
In  Great  Britain,  with  individual  liability  and  stock  com- 
pany insurance,  the  expenses  of  administration,  litigation, 
and  the  settlement  of  claims,  advertising,  agents'  commis- 
sions and  underwriters'  profits,  absorb  nearly  fifty  per  cent 
of  the  liability  premiums,  or  add  one  hundred  per  cent  to  the 
cost  of  accident  indemnity.  In  Germany,  with  compulsory 
mutual  insurance,  similar  expenses  absorb  but  fourteen  per 
cent  of  the  premiums,  or  add  only  seventeen  per  cent  to  the 
cost  of  indemnity.  In  Norway,  under  compulsory  State  in- 
surance, the  proportions  are  twelve  per  cent  and  fourteen 
per  cent  respectively.  In  other  words,  benefits  which  in 
Great  Britain  cost  the  employer  $3.72  per  $100  of  pay-roll, 
cost  $2.16  in  Norway  and  $2.24  in  Germany.763 

Either  the  Iowa  Employers'  Indemnity  Association  or  a 
State  insurance  department  should  be  able  to  approximate 
the  records  of  the  German  mutuals  in  point  of  economy, 
particularly  if  the  State  should  assume,  as  it  ought  in  fair- 
ness to  do,  the  administrative  expenses.  Under  the  plan 
here  contemplated,  business  would  come  to  the  Association 
or  department  automatically.  It  would  need  no  advertising 
and  would  have  no  agents'  commissions  to  pay  nor  profits 


174  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

to  provide.  Its  outlays  for  litigation  should  be  small  and  it 
would  require  very  few  adjusters  instead  of  the  large  num- 
ber necessary  under  the  competitive  system.  Lastly,  if 
membership  were  compulsory,  the  Association  could  safely 
adopt  the  assessment  plan,  with  only  a  moderate  reserve  to 
provide  for  contingencies.  Probably  a  sum  equal  to  the 
average  yearly  expenditures  for  compensations  would  be 
sufficient. 

The  current  assessment  plan,  as  was  explained  in  discuss- 
ing the  German  system,  withdraws  the  minimum  of  capital 
from  business  enterprise  and  starts  out  with  a  low  cost 
which  is  only  gradually  increased,  thus  throwing  the  least 
possible  strain  upon  industry.  The  full  reserve  system,  on 
the  contrary,  imposes  the  maximum  charge  at  the  outset  and 
ties  up  a  vast  capital  in  low  return  securities.  The  argu- 
ment that  full  reserves  are  essential  to  safety,  though  true 
enough  of  stock  companies  or  voluntary  associations,  has  no 
application  to  a  compulsory  State  or  mutual  fund  —  which 
always  has  the  power  to  increase  assessments  as  the  need 
arises.  It  may  be  added  that  data  for  the  computation  of 
premiums  upon  the  capitalized  liability  plan  are  not  now, 
and  will  not  for  many  years  be,  available.  No  State  as  yet 
has  accident  records  adequate  to  the  purpose.  The  liability 
companies  are  not  much  better  off.  Their  former  rates 
depended,  not  so  much  upon  the  income  loss  of  accident  vic- 
tims, as  upon  the  state  of  the  law  and  the  attitude  of  courts 
in  particular  jurisdictions.  When  called  upon  to  frame 
a  tariff  of  premiums  on  the  new  basis  they  had  to  proceed 
largely  by  guess.  By  the  current  assessment  plan  premi- 
ums, after  the  first  year,  would  be  based  on  actual  experi- 
ence and  could  never  be  either  greatly  excessive  or  grossly 
deficient.  But  this  plan  is  feasible  only  for  a  compulsory 
mutual  or  State  fund. 

What  is  even  more  important,  from  a  social  standpoint,  a 
State  department  or  a  mutual  association,  membership  in 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   175 

which  is  obligatory,  can  take  effective  measures  for  accident 
prevention  and  can  impose  adequate  penalties  upon  those 
who  disregard  safety  requirements.  Commercial  liability 
companies,  as  was  pointed  out  in  another  connection,  are 
necessarily  much  less  effectual  for  the  saving  of  life  and 
limb. 

Lastly,  a  self-contained,  compulsory  insurance  system, 
like  that  of  Germany  or  Norway,  distributes  the  cost  of  ac- 
cident relief  as  a  fixed  charge  over  the  whole  industry  and 
passes  it  on  in  the  price  of  products  to  the  consumer.  Such 
a  result  obviously  can  not  be  attained  within  the  limits  of  a 
single  State.  The  products  of  Iowa's  shops  and  mines  must 
compete  with  those  of  other  States,  and  a  tax  upon  these 
wares  can  not  be  entirely  shifted  to  the  purchasers  thereof. 
Yet  a  uniform  insurance  system,  even  if  confined  to  Iowa, 
will  effect  a  much  more  even  distribution  of  the  burden  than 
can  be  secured  by  any  other  plan.  Building  contractors,  and 
some  other  classes  of  employers,  will  be  able  to  tax  the  whole 
indemnity  charge  to  their  patrons.  Even  manufacturers 
will  treat  their  insurance  premiums  as  fixed  operating  costs 
and  will  recover  a  considerable  part  of  them  from  the  con- 
sumers of  their  products. 

The  foregoing  advantages  can  not  be  attained  in  anything 
like  full  measure  if  a  choice  of  insurers  is  permitted.  In- 
surance is  emphatically  a  "business  of  increasing  returns", 
in  that  the  proportion  of  general  or  "overhead"  expenses 
bears  an  inverse  ratio  to  the  volume  of  transactions.  Inso- 
far, then,  as  competition  limits  the  membership  of  the  State 
department  or  association  the  cost  of  insurance  will  be  en- 
hanced. In  addition  the  department  or  association  will  be 
compelled  to  indulge  in  many  of  the  wastes  of  competition 
—  duplication  of  agencies  and  adjusters,  advertising,  and 
perhaps  commissions.  Both  sources  of  loss  will  be  aug- 
mented by  the  efforts  of  stock  companies,  through  specially 
devised,  limited  liability  policies,  to  secure  the  preference 


176  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

risks  and  throw  the  undesirable  applicants  upon  the  mutual 
or  State  fund.  The  effects  of  such  competition  have  been 
felt  in  both  Massachusetts  and  Ohio,766  and  are  likely  to  ap- 
pear in  an  aggravated  form  under  the  Michigan  plan  which 
seems  specially  designed  to  secure  a  monopoly  of  bad  risks 
for  the  State  Insurance  Department.  A  further  drawback 
is  the  necessity  of  large  reserves  under  any  optional  system. 
Current  expenditures  upon  the  assessment  plan  will  inevita- 
bly increase  with  the  lapse  of  time,  and  when  attempts  are 
made  to  raise  the  assessments  correspondingly,  subscribers 
will  desert  the  fund.  Neither  the  Massachusetts  Associa- 
tion nor  the  Wisconsin  mutual  appears  fairly  to  have  faced 
this  problem.  Competition  is  even  more  fatal  to  accident 
prevention  than  to  economy.  This  point  was  sufficiently  em- 
phasized in  estimating  the  demerits  of  the  Massachusetts 
and  Ohio  laws  and  need  not  be  further  considered  here. 
Lastly,  the  co-existence  of  no  insurance  and  of  two  or  more 
insurance  systems  makes  impossible  any  attempt  at  distrib- 
uting the  burden  of  accident  indemnity. 

Compulsory  insurance  in  a  State  department  or  a  mutual 
association  appears,  therefore,  to  be  the  plan  best  calculated 
to  secure  the  great  ends  of  accident  indemnity  legislation. 

As  between  mutual  and  State  insurance,  the  balance  of 
advantages  probably  lies  with  the  former.  The  great  ob- 
jection to  the  State  plan,  in  Iowa  at  least,  is  the  menace  of 
political  manipulation.  If  authority  to  classify  employ- 
ments and  fix  premiums  in  accordance  with  risks  is  vested  in 
an  administrative  board,  the  administrators  have  a  danger- 
ous power  of  coercion  and  favoritism.  If  classes  and  rates 
are  prescribed  by  the  statute,  the  system  is  too  inflexible  to 
meet  the  requirements  of  the  case.  A  mutual  association 
not  only  avoids  this  particular  objection:  it  should  be  more 
acceptable  to  employers  and  more  heartily  supported  by 
them.  It  is  probable,  too,  that  such  an  association,  partic- 
ularly if  divided  into  semi-autonomous  industrial  groups, 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    177 

would  be  more  effective  for  accident  prevention.  Employ- 
ers are  necessarily  in  close  touch  with  the  conditions  which 
produce  work  injuries  and  are  well  equipped  to  devise  the 
means  of  preventing  them.  The  needed  incentive  would  be 
provided  by  the  Association's  power  to  penalize  disregard 
of  safety  standards. 

It  may  be  urged  against  the  considerations  here  adduced 
that  the  proposed  plans  are  "paternalistic"  and  that  gov- 
ernment ought  not  to  assume  any  duty  which  can  be  per- 
formed by  private  enterprise.  The  arguments  are  inap- 
posite. Accident  relief  is  essentially  a  police  function  un- 
dertaken in  the  interests  of  social  justice  and  of  efficient 
citizenship.  By  what  instrumentality  such  a  function  shall 
be  discharged  is  not  to  be  settled  by  an  academic  theory, 
whether  of  paternalism  or  of  laissez  faire,  but  is  purely  a 
question  of  relative  efficiency.  British  and  American  ex- 
perience has  abundantly  shown  that  commercial  liability 
insurance  is  expensive,  wasteful  and  ineffective  to  attain  the 
ends  in  view.  On  the  contrary  both  the  State  and  the  mutual 
plans  have  proven  successful  in  practical  operation.  In  the 
light  of  these  facts,  to  enact  a  simple  compensation  law  with 
optional  insurance  is  to  exalt  the  interests  of  casualty  under- 
writers over  those  of  employers,  employees,  and  the  public 
at  large.  Interstate  railways,  however,  so  far  as  they  are 
subject  to  the  law,  might  well  be  exempted  from  the  obliga- 
tion to  insure  their  liability.  The  preference  given  to  com- 
pensation claims  over  other  debts  of  the  employer  will  af- 
ford sufficient  security  to  the  employees  of  railroad  cor- 
porations. 

If  the  mutual  plan  is  to  be  adopted,  the  scheme  recom- 
mended by  the  majority  of  the  Employers'  Liability  Commis- 
sion of  Iowa  approximates  rather  closely  the  conclusions 
reached  in  the  foregoing  discussion.  Membership  in  the  pro- 
posed Indemnity  Association  is  obligatory  upon  every  em- 


178  AVORK  ACCIDENT  INDEMNITY  IN  IOWA 

ployer  who  fails  to  reject  the  compensation  plan.  The  Asso- 
sociation  is  self-governing,  though  subject  to  the  supervis- 
ory powers  of  the  Industrial  Commission.  It  assumes  for  its 
members  all  liability  under  the  compensation  act  and  has  am- 
ple authority  to  fix  rates,  to  make  safety  regulations,  and  to 
penalize  their  violation.  Obviously  this  plan  is  a  great  ad- 
vance upon  the  Massachusetts  law,  which  exposes  the  State 
association  to  the  competition  both  of  stock  companies  and  of 
other  employers'  mutuals.  Its  superiority  to  the  four-fold 
options  of  the  Michigan  act  are  even  more  manifest.  Never- 
theless, the  efficiency  of  the  Iowa  Association  will  inevitably 
be  impaired  by  the  quasi-voluntary  character  of  the  proposed 
law.  It  will  be  less  able  to  exact  suitable  penalties  for  disre- 
gard of  its  safety  rules  and  it  will  be  forced  to  carry  a  much 
heavier  surplus  than  would  be  necessary  under  a  compulsory 
act.  Furthermore,  stock  companies,  unable  to  insure  lia- 
bility under  the  compensation  act,  may  make  specially  low 
rates  to  employers  who  reject  the  plan.  Such  tactics,  if  em- 
ployed, would  go  far  to  limit  the  economies  and  restrict  the 
benefits  of  the  entire  scheme. 

Apart  from  weaknesses  which  inhere  in  any  non-compul- 
sory plan,  the  Commission's  proposals  appear  susceptible 
of  improvements  even  within  the  limitations  of  a  quasi-elec- 
tive law.  Three  modifications  of  the  proposed  plan  appear 
desirable:  (1)  State  aid  to  the  Association,  (2)  a  different 
distribution  of  votes  within  the  Association,  and  (3)  pro- 
vision for  semi-autonomous  industrial  groups. 

In  the  first  place,  the  State  as  the  final  almoner  of  widows 
and  orphans  and  of  indigent  invalids  may  well  assume  the 
administrative  expenses  of  workmen's  indemnity  insurance. 
Justice  requires  that  the  consumers  of  goods  should  pay  the 
whole  cost  of  producing  them,  including  compensation  for 
injuries  sustained  in  their  production.  Since  this  ideal  can 
not  be  realized  in  a  State  system,  the  public  can  only  be  made 
to  bear  its  just  share  of  the  burden  through  the  medium  of 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   179 

taxation.  On  this  ground  the  Swiss  federal  government  do- 
nated $1,000,000  to  the  National  Accident  Insurance  Insti- 
tute, and  pays  one-half  of  the  yearly  administrative  ex- 
penses.767 Hungary  bears  the  administrative  costs  of  the 
National  Workmen's  Sickness  and  Accident  Insurance 
Fund.768  Massachusetts  also  appropriated  $15,000  annually 
toward  the  expenses  of  the  Indemnity  Association.769  Some 
such  appropriation  should  be  made  by  the  General  Assembly 
of  Iowa.  The  State  ought  also  to  contribute  something  to- 
ward the  reserve  fund  —  say  $25,000  annually  until  the  re- 
quired reserve  is  accumulated.  If  this  plan  were  adopted, 
the  subscribers'  annual  contribution  to  the  reserve  fund 
could  be  reduced  from  ten  to  five  per  cent  of  the  gross  pre- 
miums. The  measure  of  relief  thus  afforded  is  not  to  be  re- 
garded as  a  subsidy  to  particular  industries,  but  as  no  more 
than  justice  to  employers. 

Again  the  Commission's  plan  of  organization,  borrowed 
from  the  Massachusetts  act,  appears  to  give  undue  weight 
to  the  small  employers.  It  is  desirable,  of  course,  to  prevent 
the  domination  of  the  Association  by  a  few  great  employing 
corporations.  Yet  it  would  seem  but  just  that  those  who 
will  be  called  upon  to  pay  the  bulk  of  the  contributions  should 
have  the  controlling  voice  in  the  management.  It  might  be 
well  to  allow,  say,  one  vote  for  each  one  hundred  employees 
subject  to  compensation,  with  the  proviso  that  each  member 
shall  have  one  vote  and  that  no  one  person,  firm,  or  corpora- 
tion shall  cast,  by  proxy  or  otherwise,  more  than  fifty  votes. 
Some  such  apportionment  would  make  the  plan  more  accep- 
table to  large  employers,  while  it  would  not  seriously  jeop- 
ardize the  interests  of  the  smaller  ones. 

Finally,  a  single  association,  so  heterogeneous  as  would 
necessarily  be  the  case,  might  prove  cumbrous  in  practical 
operation.  It  would  perhaps  be  well,  on  this  ground,  to  pro- 
vide for  semi-autonomous  groups  within  the  Association  — 
for    example,   manufacturers,   urban    utilities,   coal    oper- 


180  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ators,  gypsum  and  clay  mine  operators,  building  and 
construction  contractors,  and  possibly  others.  The  groups 
could  administer  their  own  insurance  and  safety  regulations 
subject  to  the  supervision  of  the  Association  and  subject 
also  to  the  obligation  of  contributing  their  respective  quotas 
to  the  common  reserve  fund.  Of  course  no  attempt  to  create 
such  groups  should  be  made  in  the  statute,  but  the  Associa- 
tion might  well  be  authorized  to  provide  therefor  in  its  own 
by-laws. 

Whether  the  State  or  the  mutual  plan  is  adopted,  classifi- 
cations, risk  ratings  and  insurance  premiums  should  be  de- 
termined, not  by  the  statute  but  by  the  Association  or  the 
administrative  board.  Assessments  upon  the  several  in- 
dustrial sub-groups  should  not,  in  either  case,  be  based  upon 
current  experience  in  Iowa  alone.  Such  a  method,  as  ap- 
plied to  some  of  the  smaller  groups  would  practically  re- 
quire one  or  more  establishments  to  carry  their  own  risks. 
It  is  only  where  large  numbers  are  involved  that  the  rule  of 
averages  applies.  Hence  Iowa  experience  should  be  sup- 
plemented by  that  of  Massachusetts  and  of  other  States 
which  provide  adequate  and  trustworthy  accident  statistics. 
Deficits  in  a  particular  group  due  to  chance  fluctuations 
from  year  to  year  should  be  made  good  from  the  reserve 
fund  to  which  all  the  groups  contribute.  In  this  way  each 
group,  during  a  long  term  of  years,  would  provide  its  own 
indemnities. 

BUKDEN  OF  INDEMNITIES 

The  principle  of  occupational  risks  requires  that  the  bur- 
den of  accident  indemnity  shall  be  imposed  upon  employers 
in  the  first  instance,  and  upon  consumers  ultimately.  Work- 
men's collective  insurance  is,  indeed,  preferable  to  individ- 
ual assumption  of  industrial  risks,  but  it  is  not  a  method  of 
accident  indemnity.  The  pecuniary  costs  of  work  injuries 
ought  not,  in  justice,  to  be  borne  either  by  the  particular 
sufferers  therefrom  or  by  wage-workers  as  a  class. 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   181 

Since,  however,  the  principle  of  occupational  risks  can  not 
be  fully  realized  within  the  limits  of  one  State,  it  may  be 
urged  that  workmen  should  share  with  their  employers  that 
part  of  the  burden  which  can  not  be  taxed  to  consumers.  To 
judge  from  testimony  taken  by  the  Iowa  commission,  this 
view  is  so  widely  held  by  the  employers  of  this  State  77°  as  to 
call  for  some  consideration  here.  The  arguments  advanced 
in  favor  of  requiring  contributions  from  employees  will  be 
discussed  in  the  inverse  order  of  their  importance. 

To  begin  with  a  far-fetched  bit  of  philanthropy,  it  is  in- 
sisted that  insurance  provided  wholly  by  employers  will 
pauperize  the  insured,  weaken  their  manhood,  and  impair 
their  self-respect.  Such  solicitude  for  the  morale  of  wage- 
earners  is  most  commendable,  but  appears  to  be  misplaced. 
The  hazards  of  industry  are  as  much  a  part  of  the  worker's 
undertaking  as  the  labor  he  performs,  and  indemnity  for 
injuries  occasioned  by  these  hazards  is  no  more  charity  than 
wages  are  a  gift. 

The  employer's  claim  to  be  relieved  of  a  part  of  the  finan- 
cial burden  of  accident  indemnity  is  entitled  to  more  con- 
sideration. It  would  seem,  however,  that  this  relief  should 
be  provided  by  the  general  public.  A  small  contribution, 
such  as  the  Ohio  law  contemplates,  is  of  little  importance  to 
employers.  On  the  other  hand,  to  deduct  from  wages  a  sub- 
stantial share  of  the  insurance  premiums  is  to  violate  cur- 
rent ideals  of  social  justice. 

Lastly,  it  is  contended  that  participation  in  the  burdens, 
as  well  as  the  benefits,  of  accident  relief  will  quicken  the 
collective  interest  of  employees  in  accident  prevention,  and 
more  particularly  in  the  detection  of  fraudulent  claims.  This 
contention  appears  to  be  sound  as  applied  to  the  German 
system.  Under  the  German  law,  it  will  be  remembered, 
cases  of  temporary  disability  are  cared  for  by  workmen's 
mutual  sickness  insurance  societies.  Such  organizations 
not  only  have  a  direct  interest  in  keeping  down  assessments, 


182  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

but  are  able  to  exercise  effective  surveillance  over  their 
members. 

It  is  to  be  observed,  however,  that  machinery  for  collective 
action  by  the  insured  is  vital  to  the  efficacy  of  such  a  plan. 
The  mere  payment  of  a  few  cents  per  week  into  a  fund  ad- 
ministered by  employers,  or  even  by  the  State,  will  never 
induce  one  workman  to  spy  upon  another  who  claims  a  dis- 
ability benefit.  The  interest  of  the  individual  is  too  slight, 
and  individual  surveillance  too  difficult,  to  be  effective.  If 
large  results  in  the  direction  contended  for  are  to  be  ob- 
tained, there  must  be  a  local  organization  of  employees,  a 
visiting  committee,  and  a  separate  fund,  supported  and  ad- 
ministered by  the  workmen  and  allocated  to  the  relief  of 
temporary  disability.  There  is  much  to  be  said  in  favor  of 
such  a  scheme,  particularly  if  associated  with  sickness  in- 
surance. 

If  the  contributory  plan  is  adopted  the  worker's  contribu- 
tions should  be  set  apart  as  a  sickness  and  temporary  dis- 
ability insurance  fund,  charged  with  the  payment  of  dis- 
ability benefits  for  a  certain  number  of  weeks.  The  fund 
should  be  administered,  either  by  local  workingmen's  so- 
cieties or  by  the  State  insurance  department  through  the 
medium  of  such  societies.  The  arrangement  would  thus  be 
compatible  with  either  State  or  employers'  mutual  accident 
insurance. 

In  accordance  with  conclusions  already  reached,  the  con- 
tributory plan,  if  adopted,  should  not  be  made  a  pretext  for 
saddling  the  workers  with  a  substantial  part  of  the  accident 
indemnity  burden.  Medical  relief  to  the  injured  ought  still 
to  be  provided  by  employers  and  benefits  paid  in  cases  of 
permanent  disability  ought  to  be  re-imbursed  to  the 
sickness  insurance  fund.  Finally,  except  as  an  integral  part 
of  some  such  plan  as  that  outlined  above,  it  does  not  com- 
port with  the  principles  of  accident  indemnity  to  exact  any 
contribution  from  employees.     Particularly  is  it  inadvis- 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    183 

able  to  require  such  contribution  to  a  fund  administered 
wholly  by  employers. 

EMPLOYMENTS  COVERED 

The  coercive  features  of  the  Commission's  bill  extend 
only  to  the  State  and  its  sub-divisions  and  to  private  em- 
ployers of  five  or  more  workmen.  The  practical  effect  of 
this  limitation  will  be  to  exclude  agriculture,  domestic  ser- 
vice, and  the  very  small  employers.  Similar  restrictions 
are  found  in  most  of  the  indemnity  acts  thus  far  adopted 
in  this  country,  and  they  are  defended  on  practical  grounds. 
Ethically,  of  course,  the  farm  laborer  who  loses  his  hand  in 
a  corn  shredder,  the  blacksmith's  helper  whose  eye  is  put 
out  by  a  flying  sliver  of  white  hot  iron,  and  the  carpenter 
who  falls  from  a  ladder  while  employed  by  a  householder 
for  a  bit  of  repair  work  has  the  same  right  to  compensation 
as  a  railway  trainman  who  is  disabled  in  the  service.  Nor 
can  it  be  maintained  that  the  risk  of  such  injuries  is  slight. 
Agriculture,  thanks  to  modern  machinery,  has  become  in 
some  degree  a  hazardous  occupation,  and  small  employers 
notoriously  are  careless  of  safety  requirements. 

Notwithstanding  these  considerations,  there  are  good 
grounds  for  approving  the  Commission's  recommendation. 
In  the  current  state  of  public  opinion  a  bill  which  should 
embrace  farm  hands,  domestic  servants,  and  small  employ- 
ers in  manual  trades  would  stand  little  chance  of  passage 
by  the  General  Assembly  of  Iowa.  Nor  would  it  be  easy  to 
provide  for  a  great  number  of  petty  employers  and  of  casual 
employees  in  the  early  stages  of  an  insurance  system.  The 
calculation  and  collection  of  premiums  for  farm  hands  and 
domestic  servants  would  be  a  difficult  matter  and  the  admin- 
istrative expenses  would  impose  an  excessive  overhead 
charge.  Moreover,  much  the  greater  part  of  agricultural 
workers  in  this  State  are  farm  owners,  or  tenants  and  their 
families.     The  need  of  agricultural  accident  indemnity  is, 


184  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

therefore,  by  no  means  so  pressing  as  in  European  countries 
where  the  system  of  hired  labor  more  generally  prevails. 
The  number  of  domestic  servants  also  is  not  large,  nor  their 
exposure  to  injury  great.  Not  so  much  can  be  said  for  the 
exclusion  of  small  employers  in  other  occupations,  but  no 
great  harm  can  result  therefrom.  Ultimately  the  principle 
of  occupational  risks  should  extend  to  all  employments,  re- 
gardless of  size  or  character,  but  it  will  be  enough  for  the 
present  to  provide  relief  in  those  employments  which  em- 
brace the  vast  majority  of  industrial  wage-workers.  Other 
employments  can  and  should  be  added  at  an  early  date. 

INTERMEDIATE  EMPLOYERS 

The  intermediate  employer  plays  an  important,  and  ap- 
parently an  increasing,  role  in  modern  industry.  He  may 
be  a  sub-contractor  who  performs  a  distinct  portion  of  the 
principal  undertaking,  a  piece  worker  who  hires  his  own 
helper,  or  a  "padrone"  who  supplies  and  directs  a  gang  of 
workmen  at  so  much  per  man  per  day.  In  any  case  the  in- 
termediary is  not  the  real  employer  or  responsible  head  of 
the  business.  He  is  apt  to  be  impecunious ;  and  to  hold  him 
liable  for  the  compensation  of.  injuries  is  to  provide  an  in- 
substantial remedy.  The  Iowa  Commission  has  accordingly 
proposed  that  ' '  all  employees  employed  in  the  execution  of 
the  work,  whether  under  the  first  or  any  one  of  sub-contract- 
ors shall  be  regarded  as  engaged  in  one  joint  enterprise  or 
business"  (Section  7  c).  This  provision  is  supportable  on 
the  same  grounds  as  the  mechanic 's  lien. 

INJURIES  INCLUDED 

As  to  the  employments  and  workmen  included,  the  pro- 
posed compensations  apply  to  "personal  injury  arising  out 
of  and  in  the  course  of  the  employment"  (Section  1).  This 
language,  as  was  mentioned  in  another  connection,  is  taken 
from  the  British  Workmen's  Compensation  Act,  except  that 


SOME  STANDARDS  OP  INDEMNITY  LEGISLATION   185 

it  omits  the  phrase  "by  accident",  which  in  that  act  qualifies 
the  expression,  "personal  injury".  The  precise  effect  of 
this  change  can  not  be  determined  in  advance  of  judicial 
construction,  but  since  intentional  injuries  are  otherwise 
provided  for  no  harm  can  result  from  the  omission.  "In- 
jury", it  is  expressly  stated  "shall  not  include  a  disease 
except  as  it  shall  result  from  the  injury"  (Section  17  g), 
but  shall  include  death  so  resulting  (Section  17  d).  "Per- 
sonal injury  arising  out  of  and  in  the  course  of  such  employ- 
ment shall  include  injuries  to  employees  whose  services  are 
being  performed  on,  in  or  about  the  premises  which  are  oc- 
cupied, used  or  controlled  by  the  employer,  and  also  injuries 
to  those  who  are  engaged  elsewhere  in  places  where  their 
employer's  business  requires  their  presence  and  subjects 
them  to  dangers  incident  to  the  business"  (Section  17  e). 

These  express  definitions  are  necessary  to  secure  certainty 
and  uniformity  of  administration.  Want  of  similar  explicit- 
ness  in  the  earlier  English  acts  caused  a  large  amount  of 
litigation  and  much  highly  technical  construction.  On  this 
ground,  the  statement  as  to  occupational  disease  might  be 
made  even  more  explicit.  Hernia,  for  example,  often  mani- 
fests itself  gradually  as  the  result  of  repeated  strains  with- 
out being  definitely  traceable  to  any  one  occurrence.  Shall 
such  a  case  be  regarded  as  a  personal  injury?  Shall  ag- 
gravation of  an  injury  to  the  lungs  by  the  inhalation  of  dust 
be  treated  as  a  case  for  compensation?  Of  course  no  form 
of  expression  can  be  devised  which  will  provide  for  every 
contingency  that  may  arise,  but  it  is  desirable  to  leave  as 
little  as  may  be  to  future  determination  by  the  courts. 

Compensation  is  denied  for  any  injury  caused  by  the  em- 
ployee's wilful  intention  to  injure  himself  or  another  or 
sustained  while  the  employee  was  intoxicated  (Section  2). 
No  exception  can  be  taken  to  these  provisions  as  applied  to 
the  injured  workmen.  There  is  less  reason  for  denying  com- 
pensation to  the  dependents  in  fatal  cases.    The  beneficiaries 


186  AVORK  ACCIDENT  INDEMNITY  IN  IOWA 

in  such  cases  are  innocent  of  wrong-doing,  and  suicide  for 
the  benefit  of  heirs  is  a  contingency  which  need  not  be  guard- 
ed against.  The  omission  of  ' '  gross  negligence  "  or  "  wilful 
misconduct",  as  grounds  for  denying  compensation,  is  to  be 
commended.  The  only  reasons  for  denying  compensation 
in  any  case  are  to  promote  safety  and  to  prevent  fraud.  But 
the  chance  of  recovering  compensation  seldom  influences  a 
workman's  conduct  in  the  usual  course  of  his  employment. 
Neither  negligence  nor  breach  of  discipline  is,  ordinarily 
deliberate  or  calculated.771  To  deny  compensation  for  such 
offenses  would  have  little  tendency  to  prevent  either  injuries 
or  fraud.  Such  misconduct  can  be  more  effectually  dealt 
with  through  the  employer's  power  of  discipline  and  the 
penal  law.  The  removal  of  machine  guards,  however,  might 
well  be  treated  as  conclusive  evidence  of  deliberate  intention 
to  injure  self  or  others. 

SCALE  OF  COMPENSATION 

Full  compensation  upon  the  principle  of  occupational  risks 
includes  (1)  the  reasonable  expenses  of  burying  the  killed, 

(2)  the  cost  of  alleviating  the  sufferings  of  the  injured  and 
of    restoring    their    earning    capacity   where    practicable, 

(3)  the  net  wage  loss  of  the  disabled  during  the  entire  period 
of  incapacity,  and  (4)  the  net  income  loss  of  those  dependent 
upon  the  deceased  throughout  the  duration  of  such  depend- 
ency. Anything  less  than  this  is,  by  so  much,  less  than  jus- 
tice. 

Imperative  convention  requires  what  is  styled  a  "decent 
burial"  for  the  dead  —  a  requirement  which  notoriously  im- 
poses a  heavy  burden  upon  working-class  families.  This 
hardship  is  all  the  greater  in  the  case  of  an  accidental  death 
which  deprives  the  family  of  its  main  source  of  income  at 
the  very  time  when  it  is  called  upon  to  meet  an  extraordi- 
nary expense.  So  much  of  this  outlay  as  custom  makes  ne- 
cessary is  rightly  to  be  considered  a  cost  entailed  by  the  acci- 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    L87 

dent.  Hence  the  Iowa  Commission  has  very  properly  rec- 
ommended that  an  allowance  of  not  more  than  $100  shall  be 
made  in  every  case  of  death  resulting  from  a  work  injury. 

The  expense  of  caring  for  the  injured  and  of  restoring 
their  earning  capacity  is,  likewise,  peculiarly  a  cost  charge- 
able to  the  industry  which  occasioned  the  injury.  Not  jus- 
tice only,  but  every  consideration  of  expediency  as  well,  re- 
quires that  medical,  surgical,  and  hospital  care,  nursing,  and 
medicines  and  therapeutic  supplies  shall  be  furnished  as 
needed  in  all  cases  of  work  injury.  The  importance  of  such 
relief  in  securing  prompt  and  expert  medical  treatment,  pre- 
venting disability  from  minor  injuries,  shortening  the  dura- 
tion of  incapacity  in  more  serious  cases,  and  detecting  simu- 
lation and  malingering  were  pointed  out  in  discussing  the 
German  system.  Probably  no  other  form  of  relief  yields  as 
large  returns  in  proportion  to  its  cost. 

The  limitation  proposed  by  the  Commission  —  four  weeks 
and  $100  —  while  adequate  in  most  cases  would  be  insuffi- 
cient in  others.  The  Industrial  Commission  should  be  em- 
powered to  grant  additional  relief  where  needed.  The  In- 
demnity Association,  or  a  branch  thereof,  should  be  author- 
ized to  furnish  attendance  through  its  own  medical  staff  and 
to  remove  patients  to  any  recognized  hospital  when  hospital 
care  is  necessary,  the  refusal  of  such  attendance  to  forfeit 
the  right  of  relief.  Free  choice  of  physicians  by  the  victims 
of  work  accidents  is  more  likely  to  promote  quackery  and 
imposition  than  to  serve  any  legitimate  end. 

Disability  and  dependent  pensions  ought,  upon  the  princi- 
ple herein  accepted,  to  be  a  percentage  only  of  full  wages. 
Dependents  in  fatal  cases  are  spared  the  maintenance  as 
well  as  the  earnings  of  the  deceased.  Invalid  workmen,  also, 
are  saved  such  expenses  as  the  cost  of  tools,  working  clothes, 
and  street  car  fare.  Besides,  if  disability  entailed  no  loss 
of  income,  the  temptation  to  feign  or  to  prolong  incapacity 
would  often  prove  irresistible.     Upon  such  considerations 


188  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

as  these  the  German  government  after  careful  inquiry  fixed 
upon  sixty-six  and  two-thirds  per  cent  of  average  wages  as 
the  proper  indemnity  for  cases  of  total  incapacity.  It  may 
be  mentioned,  for  the  sake  of  comparison,  that  Switzerland 
awards  seventy  per  cent,  Ohio  sixty-six  and  two-thirds  per 
cent,  California  and  Wisconsin  sixty-five  per  cent,  while 
Great  Britain  and  a  number  of  American  States  allow  but 
fifty  per  cent.  The  Iowa  Commission  has  recommended 
pensions  equal  to  sixty  per  cent  of  wages,  which  may  be 
regarded  as  reasonably  sufficient.  Full  wages  ought,  how- 
ever, to  be  allowed  in  cases  of  such  helplessness  as  to  require 
the  attendance  of  a  nurse. 

The  specific  compensations  proposed  for  enumerated  per- 
manent injuries  may  work  injustice  in  certain  cases.  The 
loss  of  a  thumb,  for  example,  is  a  much  more  serious  dis- 
ability in  some  employments  than  in  others.  Upon  the 
whole,  however,  the  advantages  of  such  a  schedule  in  secur- 
ing definiteness  and  facilitating  administration  probably 
outweigh  the  objections. 

In  the  Iowa  Commission's  proposed  bill,  as  well  as  in  all 
the  statutes  thus  far  enacted  in  this  country,  dependent  and 
disability  benefits  are  alike  limited  to  a  maximum  weekly 
sum.  Nevertheless,  the  imposition  of  such  a  maximum  does 
not  accord  with  the  fundamental  principle  of  work  accident 
indemnity.  Justice  not  charity,  income  loss  not  need,  is  the 
basis  of  the  claimant's  right.  Viewed  in  this  light,  a  brick 
layer  or  a  linotype  operator  is  not  indemnified  for  incapac- 
ity by  a  grant  of  $12  per  week.  True,  he  may  thereby  be 
protected  from  absolute  want  but  his  standard  of  life  will  be 
injuriously  lowered  and  his  children  will  be  denied  educa- 
tional opportunities  which  a  just  compensation  would  have 
secured  to  them.  Proportionate  indemnity  to  skilled  work- 
ers is  not  merely  just;  it  also  affords  added  incentive  to 
accident  prevention.     Nor  will  the  cost  of  such  indemnity  be 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    L89 

a  higher  proportion  of  pay-roll  in  the  case  of  skilled  than  of 
unskilled  workmen. 

There  is  still  less  justification  for  the  arbitrary  stoppage 
or  reduction  of  pensions  at  the  end  of  a  certain  period.  A 
man  totally  incapacitated  for  life,  or  a  widow  with  a  num- 
ber of  small  children,  stands  no  less  in  need  after  the  lapse 
of  a  half  dozen  years  than  at  the  time  of  the  accident.  Pen- 
sions ought  to  continue  throughout  the  period  of  incapacity 
or  dependence  —  an  invalid's  until  death  or  recovery,  a 
widow's  during  widowhood,  a  child's  until  the  full  age  of 
sixteen  years. 

It  appears  from  the  foregoing  that  the  compensations 
proposed  by  the  Iowa  Commission  are  below  the  standard 
set  up  by  the  principle  of  occupational  risks.  Nevertheless, 
some  employers  may  insist  that  the  Iowa  Commission's 
schedule  is  unduly  high  and  will  place  them  at  disadvantage 
in  competition  with  the  producers  of  other  States.  This  con- 
tention will  repay  careful  sifting. 

The  competitive  influence  of  accident  indemnity  rates  is 
most  pronounced  as  between  adjacent  communities.  On  dis- 
tant shipments,  the  effect  of  differences  in  this  particular  is 
much  less  consequential.  Hence  a  comparison  of  the  pro- 
posed compensations  with  those  now  effective  in  adjoining 
States  will  be  sufficient  for  the  present  purpose.  It  will  be 
observed  from  Table  VIII  that  the  proposed  Iowa  rates  are 
appreciably  lower  than  those  of  Wisconsin  and  not  higher, 
upon  the  whole,  than  those  of  Illinois.  Kansas  allows  some- 
what lower  benefits,  though  insurance  rates  under  the  com- 
pensation act  of  Kansas  are,  strangely  enough,  higher  than 
in  either  Illinois  or  Wisconsin.  Upon  the  whole,  Iowa  em- 
ployers under  the  proposed  law  would  be  at  no  disadvantage 
in  competition  with  those  of  Illinois,  Kansas,  or  Wiscon- 
sin —  and  this  would  be  true  even  were  stock  company  in- 
surance to  be  continued  in  Iowa  as  in  the  other  States.  If 
the  mutual  or  State  insurance  plan  is  adopted,  and  particu- 


190 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


larly  if  the  State  assumes  the  administrative  expenses  there- 
of —  as  it  ought  in  fairness  to  do  —  the  actual  cost  of  acci- 
dent indemnity  in  this  State  will  be  less  than  in  any  of  the 
above-mentioned  Commonwealths.  With  respect  to  other 
adjacent  States,  compensation  laws  are  pending  in  Minne- 
sota, North  Dakota,  Nebraska,  and  Missouri  —  though  what 
sort  of  legislation,  if  any,  will  be  enacted  can  not  at  this  writ- 


ing be  foretold. 


TABLE  VIII 


Compensa- 
tions 

Iowa  Commis- 
sion's Bill 

Illinois 

Kansas 

Wisconsin 

Funeral 

All  cases,  $100 

No    dependents, 
only,  $150 

No    dependents, 
only,  $100 

No  dependents, 
only,  $100 

Medical  aid 

4  weeks,  $100 

8    weeks,    $200 

None 

90  days 

Death    bene- 
fits   to    total 
dependents 

60%    of    wages 
for     300    weeks 
Maximum  $3600 
Minimum  $1500 

50%     of    wages 
for  8  years 
Maximum  $3500 
Minimum   $1500 

3    years '    wages 
Maximum  $3600 
Minimum   $1200 

4  years '  wages 
Maximum  $3000 
Minimum  $1500 

Total      disa- 
bility    bene- 
fits 

60%    of    wages 
for    400    weeks. 
Limits   $12   and 
$5     per     week. 
After  400  weeks, 
$10   to   $25   per 
month 

50%     of    wages 
for  8  years. 
Limits   $12   and 
$5      per     week. 
After    8    years, 
8%      of     'death 
benefit     annual- 
ly 

50%    of    wages 
for      10     years. 
Limits   $15   and 
$6  per  week 

65%  of  wages 
for  15  years. 
Maximum  total 
$3000 

Temporary 

disability 

benefits 

After    2     weeks 
60%    of    wages. 
Limits   $12   and 
$5  per  week 

After     1     week, 
50%    of    wages. 
Limits   $12   and 
$5  per  week 

After    2    weeks, 
50%    of    wages. 
Limits   $15   and 
$6  per  week 

After  1  week 
65%  of  wages. 
Limits  $9.38  and 
$4.69 

In  the  second  place,  it  is  easy  to  exaggerate  the  impor- 
tance of  indemnity  rates  as  a  factor  in  inter-State  competi- 
tion. Uniform  costs  of  production  over  any  large  area  are 
a  fiction  of  cloister  economics.  Every  community  has  its  own 
particular  advantages  and  disadvantages  in  the  way  of  wag- 
es, freight  rates,  market  facilities,  and  the  cost  of  fuel  and 
materials.  Compared  with  these  items  accident  indemnity  is 
but  a  bagatelle.  A  difference  of  $1  per  $100  of  pay-roll 
would  amount  to  less  than  two  cents  per  ton  of  coal.  More- 
over, even  under  the  common  law,  liability  insurance  varies 
as  much  as  three  hundred  per  cent  from  one  State  to  an- 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   191 

other.772  At  the  present  time  Minnesota,  the  two  Dakotas, 
Nebraska,  and  Missouri  retain  common  law  liability;  while 
Kansas,  Illinois,  and  Wisconsin  have  compensation  acts  of 
varying  scope  and  widely  different  rates  of  indemnity.  To 
equalize  competitive  conditions  with  all  these  neighbors  is 
out  of  the  question.  The  attempt  would  be  the  more  futile 
in  that,  as  already  seen,  four  neighboring  common  law 
States  are  likely  to  adopt  compensation  systems  during  the 
current  legislative  year.  In  view  of  the  action  taken  and  to 
be  taken  by  the  several  States,  uniformity  is  not  to  be  ex- 
pected for  a  good  many  years  to  come.  The  State  of  Iowa 
ought  not  to  be  deterred,  therefore,  by  such  considerations 
as  the  foregoing,  from  adopting  a  reasonably  adequate  scale 
of  compensation. 

Whatever  disagreement  may  exist  over  the  amount  of 
compensation,  there  can  not  well  be  two  intelligent  opin- 
ions with  respect  to  the  form  of  payment.  Wage-workers 
and  their  families  are  unfitted  by  training  and  experience  to 
engage  in  independent  business  ventures.  Few  opportuni- 
ties for  safe  and  profitable  investment  are  open  to  them.  To 
pay  indemnities  in  lump,  therefore,  is  to  offer  special  facili- 
ties to  the  vendors  of  gold  bricks.773  Even  the  weekly  pay- 
ments should  be  carefully  safeguarded  against  improvident 
contracts  of  debt.  The  Iowa  Commission's  proposed  bill 
(sections  15  and  20)  fairly  meets  both  requirements. 

PROVISIONS   AGAINST   FRAUD 

To  protect  the  employer  against  fraudulent  claims,  the 
proposed  act  contains  the  usual  clauses  as  to  notice  of  in- 
jury and  medical  examination  of  invalid  pensioners.  For 
the  same  reason,  no  compensation  is  payable  in  respect  of 
the  first  two  weeks'  disability.  Denial  of  compensation  for 
self-inflicted  injuries  and  the  fixing  of  pensions  at  a  portion 
only  of  the  pensioner's  usual  earnings  operate  in  the  same 


192  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

direction.    These  restrictions,  with  efficient  administration, 
should  prove  sufficient  for  the  purpose  in  view. 

ADMINISTRATION 

It  can  not  too  often  or  too  strongly  be  insisted  that  ade- 
quate administrative  machinery  is  indispensable  to  the  suc- 
cess of  the  proposed  legislation.  The  point  is  obvious  and 
will  be  admitted  without  argument  as  respects  a  State  insur- 
ance plan.  If  insurance  is  to  be  managed  by  an  employers' 
association,  State  control  is  no  less  necessary  to  protect  the 
rights  of  workmen.  Finally,  a  simple  compensation  act  does 
not  obviate  the  need  of  supervision  to  prevent  unconscion- 
able settlements  by  the  employer  or  the  liability  company 
and  to  minimize  litigation. 

To  meet  this  need  the  Commission's  bill  creates  the  Iowa 
Industrial  Commission.  The  Indemnity  Association's  safe- 
ty regulations,  risk  ratings,  classifications,  premiums,  and 
policies  are  subject  to  the  approval  of  the  Industrial  Com- 
mission, as  are  also  all  settlements  between  the  Association 
or  its  members  and  injured  employees  or  their  dependents. 
The  Commission  is  empowered  to  make  rules  for  carrying 
into  effect  the  provisions  of  the  compensation  act,  to  sub- 
poena witnesses,  administer  oaths,  and  compel  the  produc- 
tion of  books  and  papers  pertaining  to  any  inquiry  before  it. 
If  State  insurance  should  be  adopted,  the  Industrial  Com- 
mission would,  of  course,  exercise  still  wider  powers. 

To  these  functions  the  Employers'  Liability  Commission 
proposes  to  add  those  now  vested  in  the  Iowa  Bureau  of 
Labor  Statistics.774  This  suggestion,  borrowed  from  "Wis- 
consin, is  eminently  worthy  of  adoption.  There  would  be  a 
notable  gain  in  economy  and  efficiency  from  unified  adminis- 
tration of  the  various  labor  laws.  The  work  of  accident 
prevention,  including  factory  inspection  and  the  collection 
of  accident  reports,  ought  obviously  to  be  performed  by  the 
board  which  administers  the  compensation  act.     Factory 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION   193 

inspection  necessarily  carries  with  it  the  enforcement  of  the 
child  labor  law  and  of  other  statutes  designed  to  secure  the 
health  and  safety  of  employees.  It  would  be  absurd  to  main- 
tain a  separate  bureau  for  the  remaining  duties  of  the  Labor 
Commissioner.  The  same  reasoning  applies,  of  course,  to 
the  office  of  State  Mine  Inspector. 

Accordingly,  the  Industrial  Commission  should  be  en- 
trusted with  the  administration  of  the  compensation  act,  the 
various  factory  acts,  the  mine  law,  the  child  labor  law,  the 
statutes  pertaining  to  fire  escapes,  boiler  inspection  and  em- 
ployment agencies,  and  all  other  labor  laws  enacted  or  to 
be  enacted.  It  should  be  authorized  to  appoint  a  sufficient 
number  of  clerks,  statisticians,  inspectors,  and  experts  to 
carry  into  effect  the  foregoing  powers  and  to  fix  their  com- 
pensations. Appointments  by  the  Commission  should,  in  all 
proper  cases,  be  made  under  civil  service  regulations  simi- 
lar to  those  now  applicable  to  State  Mine  Inspectors. 

An  administrative  body  vested  with  such  broad  powers 
ought,  of  course,  to  be  carefully  safeguarded  against  politi- 
cal control,  but  the  method  of  appointment  devised  by  the 
Iowa  Commission  to  secure  that  laudable  end  can  scarcely 
be  termed  a  happy  invention.  Non-judicial  duties  ought  not 
to  be  required  of  a  court,  and  the  nomination  of  administra- 
tive officers  is  anything  but  a  judicial  function.  The  danger 
that  the  court  itself  may  thereby  become  involved  in  political 
controversies  is  at  least  as  great  as  the  chance  that  the  Com- 
mission will  be  shielded  from  improper  influence  by  such  a 
mode  of  nomination.  The  Supreme  Court,  besides,  has  not 
necessarily  any  special  fitness  for  the  task  which  would  thus 
be  thrust  upon  it.  The  judges  could  wisely  select  a  commis- 
sion of  lawyers,  but  legal  talent  is  not  the  most  essential 
requisite  for  the  administration  of  workingmen's  insurance. 

Better  results  would  probably  be  obtained  by  giving  the 
parties  most  immediately  affected  by  the  proposed  legisla- 
tion a  large  share  in  the  selection  of  its  administrators.    The 


194  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

following  suggestion  looking  to  that  end  is  submitted  with 
much  deference.  ( 1 )  The  Chairman  of  the  Industrial  Com- 
mission shall  be  appointed  by  the  Governor,  by  and  with  the 
advice  and  consent  of  the  Senate,  from  a  list  of  three  quali- 
fied attorneys  at  law  nominated  by  the  Supreme  Court  of 
Iowa.  (2)  One  Commissioner  shall  be  similarly  appointed 
from  a  list  of  three  persons  nominated  by  the  Executive 
Council  of  the  Iowa  Federation  of  Labor,  of  which  nominees 
one  at  least  shall  not  be  a  member  of  the  said  Federation. 
(3)  The  third  Commissioner  shall  be  appointed  in  like  man- 
ner from  a  like  list  nominated  upon  the  same  condition  by  the 
Board  of  Directors  of  the  Employers'  Indemnity  Associa- 
tion of  Iowa.  Pending  the  formation  of  said  Association, 
or  in  case  State  insurance  is  adopted,  appointment  shall  be 
made  from  three  nominees  of  whom  two  shall  be  named  by 
the  Iowa  Manufacturers'  Association  and  one  by  the  Iowa 
Coal  Operators'  Association. 

Under  this  plan,  the  Chairman  of  the  Industrial  Commis- 
sion would  be  a  lawyer  of  standing,  able  to  act  as  ex  officio 
counsel  to  the  Commission,  and  to  serve  as  umpire  in  any 
case  of  disagreement  between  his  two  associates.  The  heavy 
pecuniary  stake  of  both  the  Federation  and  the  Association 
should  guarantee  fit  nominations,  while  the  public  interest 
would  be  sufficiently  safeguarded  by  the  method  of  appoint- 
ment. 

The  proposed  prohibition  of  political  activity  by  members 
of  the  Industrial  Commission  and  the  requirement  that  all 
recommendations  for  appointments  shall  be  of  public  record 
are  eminently  proper.  It  might  be  well  to  add  participation 
as  a  delegate  or  alternate  in  the  proceedings  of  any  political 
party  convention  to  the  list  of  prohibited  acts.  The  ten  year 
term  recommended  by  the  Liability  Commission  apparently 
is  designed  as  a  further  precaution  against  political  influ- 
ence, but  it  would  serve  as  well  to  attract  high  grade  men 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION    195 

and  would  enable  the  members  to  become  expert  in  the  per- 
formance of  their  important  duties. 

All  the  pains  expended  upon  the  constitution  of  the  In- 
dustrial Commission  will  be  but  labor  wasted  unless  ade- 
quate financial  support  is  provided.  The  Commissioners' 
salaries  must  be  fairly  liberal  to  secure  capable  adminis- 
trators. Five  thousand  dollars  is  the  amount  fixed  upon  by 
California,  Massachusetts,  and  Wisconsin,  and  this  sum  is 
probably  not  too  large  for  the  purpose  in  view.  The  services 
of  a  consulting  actuary  will  be  needed  to  pass  upon  the 
classifications,  risk  ratings,  and  premium  tariff  of  the  In- 
demnity Association.  A  statistician  must  be  employed  if 
the  Commission's  accident  records  are  to  be  of  the  largest 
service  to  the  State.  The  present  inadequate  inspectional 
staff  should  be  immediately  increased.  A  secretary  and  a 
moderate  clerical  force  will  be  required ;  and  it  will  probably 
be  necessary,  as  soon  as  the  law  becomes  generally  effective, 
to  appoint  an  examiner  of  claims.  There  should  be  a  travel- 
ling "safety  exhibit",  such  as  the  Industrial  Commission  of 
Wisconsin  has  maintained  with  excellent  results  during  the 
past  summer.  Lastly,  the  expenses  of  the  Arbitration  Com- 
mittees, to  be  later  described,  should  be  borne  by  the  Com- 
mission. All  this  will  require  at  least  $50,000  per  year.  The 
Industrial  Commission  of  Wisconsin  spends  about  $75,000 
annually.775  California  776  appropriated  $50,000,  and  Michi- 
gan 777  $25,000  for  the  expenses  of  their  industrial  accident 
boards,  which  have  much  narrower  functions  than  those  here 
contemplated. 

Champions  of  "strict  economy"  —  except  for  purposes  of 
patronage  —  will  object  to  the  seemingly  large  appropria- 
tions contemplated  in  these  pages.  It  should  be  remem- 
bered, however,  that  governmental  economy  is  not  to  be 
judged  by  expenditure  alone,  but  as  well  by  the  results  ob- 
tained. The  great  objects  of  the  proposed  legislation  —  the 
alleviation  of  human  suffering,  the  saving  of  human  life,  the 


196  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

prevention  of  undeserved  poverty,  the  securing  of  justice, 
and  the  promotion  of  better  relations  between  employers 
and  employees  —  would  justify  a  much  larger  outlay  of  pub- 
lic money  than  is  here  suggested.  The  whole  amount  re- 
quired for  the  support  of  the  Industrial  Commission  and  for 
the  assistance  of  the  Indemnity  Association,  including  the 
donation  to  the  reserve  fund,  would  not  exceed  $100,000  per 
year.  Most,  if  not  the  whole,  of  this  sum  would  be  directly 
saved  to  tax-payers  in  smaller  court  costs  and  decreased 
demand  upon  public  charity.  It  is  well  known  that  personal 
injury  litigation,  under  the  present  system,  employs  much  of 
the  time  of  the  district  and  supreme  courts  and  that  alms- 
houses are  filled,  to  no  small  extent,  with  the  victims  of  work 
accidents. 

ADJUDICATION  OF  CLAIMS 

The  evils  of  personal  injury  litigation  under  the  existing 
system  were  emphasized  in  another  part  of  the  present 
study,  and  are,  indeed,  too  well  known  to  require  much  ampli- 
fication. What  legislators  in  certain  States  appear  to  have 
overlooked  is  that  these  evils  can  not  be  cured  by  a  compen- 
sation act  administered  through  the  ordinary  courts.  Even 
the  summary  process  provided  by  New  Jersey  and  Rhode 
Island  is  an  inadequate  remedy.  Judges  find  it  difficult  to 
disassociate  themselves  from  the  habit  of  litigious  pro- 
cedure, technical  construction,  and  insistence  upon  formal 
correctness  —  habits  which  are  serviceable  and  necessary  in 
ordinary  judicial  procedure,  but  which  are  out  of  place  in 
the  administration  of  accident  relief.  Indeed,  the  very  quali- 
ties which  make  a  judge  proficient  in  his  proper  sphere  unfit 
him  for  the  performance  of  administrative  duties.  Besides, 
the  courts  are  not  in  continuous  session  and  are  too  much 
occupied  with  other  matters  to  pass  upon  every  settlement 
between  an  injured  workman  and  his  employer  or  to  de- 
termine, with  reasonable  promptness,  every  dispute  which 
may  arise  out  of  industrial  injuries.    Court  administration, 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION  197 

therefore,  means  needless  lawsuits,  with  resultant  expense, 
delay  and  bitterness.  It  means  also  that  workmen  and  their 
dependents  will  be  pressed  into  accepting  inadequate  settle- 
ments and  that  much  of  the  money  paid  out  by  employers 
will  be  diverted  from  the  beneficiaries. 

Tested  by  the  above  considerations,  the  procedure  recom- 
mended by  the  Iowa  Commission  leaves  little  to  be  desired. 
Friendly  settlements  are  encouraged  and  the  arbitration  of 
disputes  is  compulsory.  Every  pretext  to  a  jury  trial  is 
taken  away.  Judicial  review  is  limited  to  questions  of  law, 
and  practically  is  confined  to  the  Supreme  Court,  since  the 
District  Court  can  only  enter  a  decree  in  accordance  with  a 
memorandum  of  agreement  or  in  pursuance  of  the  findings 
of  an  Arbitration  Committee  or  of  the  Industrial  Commis- 
sion. The  limitation  of  attorney's  fees  will  tend  still  further 
to  discourage  litigation  by  lessening  the  temptation  thereto. 
At  the  same  time  the  rights  of  claimants  are  sufficiently 
safeguarded  by  the  control  of  the  Industrial  Commission 
over  settlements  and  arbitrations.  There  can  be  little  doubt 
that  these  proposals  are  constitutional,  at  least  as  applied  to 
a  quasi-elective  act  or  to  a  State  insurance  law. 

It  may  prove  impracticable,  when  once  the  new  law  is  in 
full  operation,  for  members  of  the  Commission  to  serve  on 
all  Arbitration  Committees.  Should  such  a  situation  arise, 
it  could  readily  be  met  by  appointing  an  examiner  of  claims. 
Exception  may  be  taken  to  the  proposed  division  of  arbitra- 
tion costs.  Such  costs  are  properly  an  administrative  ex- 
pense which  ought  not,  in  fairness,  to  be  imposed  upon  the 
employer  nor  deducted  from  the  compensations  awarded. 
The  fees  of  arbitrators,  witnesses,  and  medical  examiners 
might  well  be  paid  by  the  State.  To  discourage  pertinacious 
litigation,  the  Arbitration  Committee  should  be  empowered 
to  tax  such  costs  to  either  party  when,  in  its  opinion,  equity 
so  requires. 

If  State  insurance  is  adopted  the  primary  determination 


198  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

of  claims  will  naturally  be  vested  in  the  Industrial  Commis- 
sion, aided  perhaps  by  claim  examiners.  Arbitration  com- 
mittees would  of  course  not  be  needed.  Judicial  review  of 
the  Commission's  decisions  could  be  limited  to  grounds  of 
fraud,  want  of  jurisdiction,  or  insufficiency  of  the  facts  found 
by  the  Commission  to  support  its  decision. 

It  is  doubtful  whether  litigious  proceedings  can  be  avoided 
under  a  simple  compensation  act.  Even  the  summary  court 
procedure  proposed  by  Mr.  Baldwin's  bill  is  of  questionable 
validity  as  applied  to  a  compulsory  law.  Disputed  claims 
under  such  an  act  are  controversies  between  private  parties 
and  would  seem  to  be  within  the  jury  trial  guarantee  of  the 
Constitution  of  Iowa. 

ACCIDENT  PREVENTION 

Full  accident  records,  intelligently  organized,  adequate 
safety  regulations,  and  rigorous  enforcement  thereof  are 
the  great  requisites  of  accident  prevention.  The  Iowa  Com- 
mission's proposals  in  each  of  these  particulars  are  admir- 
able. 

If  accident  prevention  is  to  make  notable  progress,  the 
precise  manner  in  which  accidents  occur  must  be  definitely 
known.  If  indemnity  insurance  is  ever  to  rest  on  a  scientific 
basis,  not  merely  the  number  but  the  character  of  work  in- 
juries, the  extent  and  duration  of  disability,  and  the  wage 
loss  incurred  must  be  accurately  tabulated  for  a  long  term 
of  years.  The  extant  accident  statistics  of  this  State,  if  in- 
deed they  may  be  dignified  by  such  a  term,  are  substantially 
worthless  for  either  purpose.  The  Railroad  Commissioners 
and  the  State  Mine  Inspectors  publish  the  number  of  work 
injuries,  distinguished  as  fatal  and  non-fatal,  and  grouped 
under  general  causes,  such  as  falls  of  slate  and  coal,  derail- 
ments, and  the  like.  Such  classifications  throw  very  little 
light  upon  the  problem  of  prevention  and  still  less  upon  that 
of  insurance.    The  Bureau  of  Labor,  being  dependent  upon 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION  199 

annual  and  practically  voluntary  reports  from  employers,  is 
unable  to  indicate  even  the  number  of  accidents  in  industries 
other  than  coal  mining  and  railroad  transportation. 

To  supply  what  the  present  laws  fail  to  furnish  the  Iowa 
Commission's  proposed  bill  (Section  38)  requires  every  em- 
ployer to  keep  a  record  of  all  injuries  sustained  in  his  em- 
ployment and  to  report  every  accident  to  the  Industrial 
Commission  within  forty-eight  hours  after  its  occurrence. 
Upon  the  termination  of  the  disability,  or  after  the  expira- 
tion of  sixty  days  if  incapacity  continues  so  long,  a  supple- 
mental report  must  be  made.  The  reports  must  state  the 
name,  age,  sex,  and  occupation  of  the  injured  employee,  the 
date  and  hour  of  the  accident,  the  nature  and  cause  of  the 
injury,  and  such  other  information  as  the  Industrial  Com- 
mission may  require.  Failure  to  report  is  punishable  by  a 
fine  of  not  more  than  $50. 

The  "other  information"  referred  to  should  include  the 
race,  nativity,  and  conjugal  condition  of  the  injured,  the 
wage  rate  received  at  the  time  of  the  accident,  the  precise 
manner  of  the  injury,  and,  if  caused  by  machinery  of  any 
kind,  the  mode,  if  any,  in  which  the  same  was  guarded.  The 
supplemental  report  should  give  the  facts  as  to  compensa- 
tion, medical  relief,  and  degree  of  recovery.  All  other  infor- 
mation called  for  should  be  supplied,  so  far  as  possible,  in 
the  first  report. 

The  foregoing  data,  properly  tabulated,  will  provide  a 
body  of  accident  statistics  comparable  in  thoroughness  and 
value  with  the  German  records  —  the  conceded  standard  of 
excellence.  I£is  important  that  minor  as  well  as  serious 
injuries  be  reported.  Full  records  are  required  to  reveal 
the  cause  of  accidents  and  the  most  efficient  means  of  pre- 
venting them.  Race,  sex,  nationality,  and  time  and  manner 
of  occurrence  are  significant  in  the  same  connection.  The 
other  facts  above  referred  to  are  needed  for  the  administra- 
tion of  insurance.    Lastly,  if  the  records  are  to  be  of  use,  the 


200  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

data  must  be  so  tabulated  as  to  reveal  significant  facts.  It 
is  for  this  reason  that  the  services  of  a  statistician  —  not  a 
mere  clerk  —  are  necessary. 

The  attempt  to  embody  safety  regulations  in  statute  law 
has  never  yielded  satisfactory  results  in  Iowa  or  elsewhere. 
The  mass  of  detail  is  too  great  and  conditions  are  too  varied, 
complex,  and  changeable,  to  be  successfully  dealt  with  by  the 
legislature.  It  is  not  enough  to  prescribe  that  "all  machin- 
ery shall  be  properly  guarded".778  What  constitutes  a 
proper  guard  under  such  a  statute  is  a  question  of  fact,  to  be 
determined  by  the  courts  in  criminal  prosecutions  and  civil 
suits  for  damages.  The  question  is  likely  to  be  differently 
determined  upon  the  same  state  of  facts  in  these  two  classes 
of  proceedings  and  the  method  is  at  best  a  clumsy  one,  slow, 
and  inadequate.  What  is  needed  is  a  precise  definition  of 
the  proper  and  requisite  guards  for  each  particular  kind  and 
type  of  machine  under  given  conditions.  The  like  may  be 
said  of  methods  of  work,  clothing  of  workmen,  warning  sig- 
nals, dust  removal,  ventilation,  and  all  the  other  manifold 
circumstances  that  affect  the  worker's  safety,  health  and 
comfort.  The  detailed  regulations  necessary  can  not  be  pre- 
scribed by  the  legislature  nor  can  they  well  be  left  to  fac- 
tory inspectors  or  to  a  single-headed  bureau.779 

Wisconsin  has  found  a  solution  of  the  difficulty,  suggested 
by  European  experience.  The  law  prescribes,  in  general 
terms,  that  every  place  of  employment  shall  be  safe  for  em- 
ployees therein  and  for  frequenters  thereof,  and  that  every 
employer  shall  furnish  and  use  safety  devices  and  safe- 
guards, and  shall  adopt  and  use  methods  and  processes 
reasonably  adequate  to  render  such  employment  safe,  and 
shall  do  everything  reasonably  necessary  to  protect  the  life, 
health,  safety,  and  welfare  of  employees.780  The  Industrial 
Commission  is  empowered  to  make  general  or  special  or- 
ders, having  the  force  of  law,  in  pursuance  of  this  require- 


SOME  STANDARDS  OF  INDEMNITY  LEGISLATION  201 

ment  and  containing  the  detailed  regulations  necessary  to 
give  it  effect.781 

A  similar  plan  has  been  recommended  by  the  Iowa  Com- 
mission 782  and  ought  to  be  adopted.  The  existing  laws  of 
Iowa  relating  to  the  safety  and  sanitation  of  working  places 
are  far  from  adequate.  Gypsum  and  clay  mines,  harvesting 
machinery,  stone  quarries,  bake  shops,  tenement  labor,  and 
construction  work,  to  mention  a  few  glaring  examples,  are 
nearly  exempt  from  regulation.  The  present  affords  a  fa- 
vorable opportunity  to  cure  these  defects  by  enacting  a 
general  law  similar  to  that  of  Wisconsin.  The  Indemnity 
Association,  created  by  the  compensation  act,  would  be  pe- 
culiarly fitted  to  cooperate  with  the  Industrial  Commission 
in  framing  an  efficient  and  practical  safety  code.  Enforce- 
ment of  the  regulations  so  devised  would  not  depend  upon 
the  ineffectual  method  of  criminal  prosecutions.  Violation 
of  a  safety  rule  would  be  ground  for  higher  insurance  rates. 
Accident  prevention  would  become  a  business  proposition. 
The  like  result  can  not  be  attained  in  any  other  way  than  by 
compulsory  mutual  or  State  insurance. 

The  proposed  plan  provides  effective  machinery  for  the 
administration  of  the  safety  laws.  The  Industrial  Commis- 
sion's inspectors  would  be  supplemented  by  the  field  agents 
of  the  Association,  and  the  self-interest  of  employers  would 
be  enlisted  on  behalf  of  all  reasonable  regulations.  To  a 
considerable  extent  work  accidents  are  due  to  sheer  igno- 
rance of  preventive  measures.  Both  employers  and  work- 
men require  education  in  safe  methods  of  work.  For  this 
reason  the  Industrial  Commission  of  Wisconsin  maintained, 
during  the  past  summer,  a  traveling  safety  exhibit,  as- 
sembled by  Mr.  C.  W.  Price  of  the  International  Harvester 
Company,  and  embodying  ideas  suggested  by  the  experience 
and  experimentation  of  many  employers  in  this  country  and 
abroad.783  A  similar  device  would  probably  yield  large  re- 
sults in  Iowa.    In  time  the  accident  records  of  the  Industrial 


202  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Commission  and  the  accumulated  insurance  experience 
would  furnish  a  mass  of  comparative  data  which  could  be 
turned  to  account  for  scientific  accident  prevention.  Mean- 
while, and  above  all,  this  educative  work  would  be  consistent- 
ly followed  up  by  adequate  pressure  upon  any  employer  who 
might  fall  below  the  standard  set  by  the  safety  rules. 

CONCLUSION 

The  conclusions  reached  in  the  foregoing  pages  mutually 
support  each  other.  Substantially  all  students  of  the  sub- 
ject agree  that  occupational  risks  afford  the  only  scientific 
or  equitable  basis  of  accident  indemnity.  Experience  has 
shown  that  compulsory  insurance  is  the  sole  method  where- 
by the  principle  of  occupational  risks  can  be  given  full  effect. 
The  obligatory  insurance  must  be  conducted  exclusively  by 
the  State,  or  by  a  single  State-aided  mutual  association,  in 
order  that  adequate  indemnities  may  be  provided  without 
unduly  burdening  employers.  A  special  administrative 
board  is  necessary,  either  to  administer  the  State  fund  or  to 
protect  the  rights  of  workmen  under  the  mutual  plan,  and 
to  provide  for  the  prompt  and  economical  determination  of 
claims.  That  the  machinery  created  for  this  purpose  should 
be  utilized  for  the  administration  of  other  labor  laws  as  well 
is  too  plain  for  argument.  Lastly,  and  not  least  of  all,  both 
the  insurance  plan  and  the  administrative  provisions  tend 
powerfully  to  promote  accident  prevention. 


NOTES  AND  REFERENCES 


NOTES  AND  REFERENCES 

1  See  Official  Directory  of  the  Iowa  Federation  of  Labor,  1911,  pp. 
201  et  seq;  Proceedings  of  the  Iowa  State  Manufacturers  Associa- 
tion, 1911. 

2  See  below,  Chs.  IV,  V. 

3  There  are  no  trustworthy  records  of  work  accidents  in  the  whole 
United  States.  Probably  the  most  reliable  estimate  is  that  of  Mr. 
Frederick  L.  Hoffman  in  Bulletin  of  the  United  States  Bureau  of 
Labor,  No.  78,  p.  458.  The  statement  in  the  text  as  to  the  number 
of  " disabling  accidents"  is  based  on  the  accurately  recorded  ex- 
perience of  the  German  Empire  that  approximately  one-fourth  of 
the  accidents  reported  cause  disability  for  more  than  one  week. 

For  other  estimates  see  Hard's  Injured  in  the  Course  of  Duty, 
Ch.  II,  p.  39;  Professor  Falkner  in  the  Proceedings  of  the  Ninth 
Annual  Meeting  of  the  National  Civic  Federation,  1908,  p.  156. 

4  Compare  Strong's  Our  Industrial  Juggernaut  in  The  North 
American  Review,  Vol.  183,  pp.  1030,  1031. 

5  On  the  possibilities  of  accident  prevention  see  Schwedtman  and 
Emery's  Accident  Prevention  and  Relief,  Ch.  VI;  Eastman's  Work 
Accidents  and  the  Law,  Ch.  VII;  Seager's  Social  Insurance,  pp.  28- 
32;  Bulletin  of  the  United  States  Geological  Survey,  No.  333;  Bulle- 
tin of  the  United  States  Bureau  of  Labor,  No.  78,  pp.  457,  458,  No. 
90,  pp.  437-674,  especially  615-622. 

6  Cited  from  Schwedtman  and  Emery's  Accident  Prevention  and 
Relief,  p.  34.  The  figures  quoted  are  for  1908.  For  the  statistics  of 
1907  and  of  the  preceding  decade  see  Bulletin  of  the  United  States 
Bureau  of  Labor,  No.  92.  For  the  entire  period,  1885  to  1907,  see 
Twenty-fourth  Annual  Report  of  the  United  States  Commissioner 
of  Labor,  Vol.  I,  pp.  1146,  1147. 

7  For  comparisons  see  Bulletin  of  the  United  States  Bureau  of 
Labor,  No.  78,  p.  458. 

205 


206  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

8  See  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  92,  pp. 
15  et  seq. 

9  For  graphic  illustration  of  this  point  see  Fitch's  The  Process  of 
Steel  Making  in  Charities  and  the  Commons,  Vol.  21,  pp.  1065-1078 ; 
also  Fitch's  The  Steel  Workers,  Ch.  VII,  and  the  chapter  entitled 
Making  Steel  and  Killing  Men  in  Hard's  Injured  in  the  Course  of 
Duty. 

io  1 1  rp^  genjus  0f  our  present  remarkable  industrial  development 
requires  that  he  [the  workman]  carry  on  his  patient  toil  in  company 
with  veritable  armies  of  fellow  men,  many  of  whom  he  can  neither 
see  nor  know;  it  surrounds  him  with  mighty  and  complicated  ma- 
chinery driven  by  forces  beyond  his  control,  whose  relentless  strength 
rivals  that  of  the  thunderbolt  itself ;  and  it  requires  him  to  labor  day 
by  day  with  faculties  at  highest  tension  in  places  where  death  lurks 
in  ambush  at  his  elbow,  awaiting  only  a  moment's  inadvertence  be- 
fore it  strikes."  —  Remarks  of  Chief  Justice  Winslow  (Wisconsin) 
in  Driscoll  vs.  Allis  Chalmers  Company,  129  Northwestern  401,  408. 

11  See  Veblen's  The  Theory  of  Business  Enterprise,  Ch.  IX. 

12  Compare  what  is  said  on  this  point  in  the  Twenty-fourth  Annual 
Report  of  the  Interstate  Commerce  Commission  (1910),  p.  188. 

13  The  precise  records  of  the  German  Imperial  Insurance  Office 
show  that  a  disproportionately  large  number  of  accidents  occur  on 
the  first  and  last  days  of  the  week  and  near  the  beginning  and  end 
of  each  working  period.  That  is  to  say,  after  an  interval  of  rest  the 
worker  requires  an  appreciable  time  to  re-adjust  himself  to  his  me- 
chanical environment;  and,  again,  after  a  period  of  work  his  ad- 
justment becomes  impaired,  and  his  attention  and  memory  lapse, 
through  fatigue.  —  See  Bulletin  of  the  United  States  Bureau  of 
Labor,  No.  92,  pp.  23-33. 

14  Compare  Goldmark's  Fatigue  and  Efficiency,  pp.  80-82. 

15  On  the  relation  of  fatigue  to  accident  liability  see  Goldmark's 
Fatigue  and  Efficiency,  pp.  71-79;  Bogardus's  The  Relation  of  Fa- 
tigue to  Industrial  Accidents  in  The  American  Journal  of  Sociology, 
September  and  November,  1911,  and  January,  1912,  Vol.  XVII,  pp. 
206-222,  351-374,  512-539. 


NOTES  AND  REFERENCES  207 

10  Compare  Veblen's  The  Place  of  Science  in  Modern  Civilization 
in  The  American  Journal  of  Sociology,  Vol.  XI,  pp.  585-609. 

17  Mr.  C.  W.  Price,  of  the  International  Harvester  Company, 
stated  to  the  writer,  in  August,  1910,  that  nearly  ninety  per  cent  of 
the  25,000  employees  of  that  mammoth  concern  were  unskilled, 
"mostly  recent  immigrants".  Mr.  John  Fitch,  of  the  Pittsburgh 
Survey,  found  that  sixty  per  cent  of  the  steel  workers  are  unskilled, 
thirty-six  or  thirty-seven  per  cent  are  semi-skilled  and  only  three  or 
four  per  cent  are  skilled  {Charities  and  the  Commons,  Vol.  21,  pp. 
1085,  1086).  The  "unskilled"  referred  to  are  peasants  from  South- 
eastern Europe  (Charities  and  the  Commons,  Vol.  21,  pp.  1051  et 
seq.).  Similar  peasants  form  the  great  bulk  of  the  packing  house 
workers  (The  American  Journal  of  Sociology,  Vol.  XVI,  pp.  433- 
468),  of  the  steel  mill  operatives  in  South  Chicago  (The  American 
Journal  of  Sociology,  Vol.  XVII,  pp.  145-176)  and  of  the  anthracite 
coal  miners  (Roberts's  Anthracite  Coal  Communities,  Ch.  I). 

18  See  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  92,  pp. 
60-65. 

19  Hard's  Injured  in  the  Course  of  Duty,  pp.  38-40. 

20Spahr's  Present  Distribution  of  Wealth  in  the  United  States, 
p.  69. 

21  Lewis's  State  Insurance,  pp.  12-17 ;  Holmes's  The  Concentration 
of  Wealth  in  the  Political  Science  Quarterly,  Vol.  8,  pp.  589-600. 

22  Lewis's  State  Insurance,  pp.  10,  11,  and  authorities  there  cited. 

23  The  sources  drawn  upon  by  the  authorities  cited  in  notes  20  to 
22  inclusive. 

24  Nearing's  Wages  in  the  United  States,  pp.  211-214. 

25  Eastman's  Work  Accidents  and  the  Law,  pp.  129-131. 

26  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Labor, 
Part  II,  p.  134,  Table  7. 

27  Eastman's  Work  Accidents  and  the  Law,  Ch.  IX,  especially 
pp.  133,  134. 

28  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  Part  I,  Appendix  XIX,  Tables  IX,  X,  XI,  and  XVII. 


208  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

29  Henderson 's  Industrial  Insurance  in  the  United  States,  p.  149. 

30  Compare  Lewis's  State  Insurance,  Ch.  I. 

31  Eastman 's  Work  Accidents  and  the  Law,  pp.  119,  120. 

In  59  eases  the  economic  responsibilities  of  the  deceased  could  not 
be  learned. 

32  Report  of  the  Ohio  Employers'  Liability  Commission,  1911, 
Part  I,  pp.  xxxvi-xliv. 

33  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  Part  I,  pp.  232,  233. 

34  Thirteenth  Biennial  Report  of  the  Wisconsin  Bureau  of  Labor 
Statistics,  1907-1908,  p.  13. 

35  Compiled  by  the  writer  from  the  Reports  of  the  State  Mine  In- 
spectors and  of  the  Railroad  Commissioners. 

36  See  Biennial  Reports  of  the  Iowa  Bureau  of  Labor  Statistics. 

37  Compare  Downey's  History  of  Labor  Legislation  in  Iowa,  pp. 
100,  101. 

38  Review  of  the  First  Eight  Months'  Operation  of  the  Workmen's 
Compensation  Act,  a  leaflet  issued  by  the  Washington  Industrial 
Insurance  Commission  in  June,  1912. 

39  Report  of  the  Michigan  Employers'  Liability  and  Workmen's 
Compensation  Commission,  1911,  p.  9. 

40  Bulletin  of  the  Industrial  Commission  of  Wisconsin,  No.  3,  p. 
87. 

41 ' '  But  practically  it  happens,  as  though  through  some  inad- 
vertance,  that  in  making  a  contract  of  the  greatest  possible  moment, 
both  parties  seem  to  ignore  absolutely  certain  very  important  ele- 
ments ;  the  contract  is  made  as  though  sickness,  accidents,  invalidity, 
and  old  age  had  been  permanently  banished  from  the  earth."  — 
Lewis's  State  Insurance,  p.  7. 

42  Lord  Abinger,  in  Priestley  vs.  Fowler,  3  Meeson  and  Welsby, 
1,  5  (England,  1837),  remarked  upon  the  novelty  of  the  questions 
presented.  Mr.  Justice  Evans,  in  Murray  vs.  South  Carolina  Rail- 
road Company,  1  MeMullan  385,  397  (South  Carolina,  1841)  spoke 
of  there  being  not  a  single  precedent. 


NOTES  AND  REFERENCES  209 

43  This  is  clearly  shown  by  Chief  Justice  Shaw's  opinion  in  the 
Farwell  case:  "In  considering  the  rights  and  obligations  arising 
out  of  particular  relations,  it  is  competent  for  courts  of  justice  to 
regard  considerations  of  policy  and  general  convenience,  and  to 
draw  from  them  such  rules  as  will,  ....  best  promote  the 
safety  and  security  of  all  parties  concerned. ' '  —  Farwell  vs.  Boston 
and  Worcester  Railroad  Corporation,  4  Metcalf  49,  58  (Massachu- 
setts, 1842). 

Lord  Abinger  likewise  made  much  of  the  argument  um  ab  incon- 
venienti,  in  Priestley  vs.  Fowler,  3  Meeson  and  Welsby,  1,  5,  6  (Eng- 
land, 1837). 

Compare  Lewis's  State  Insurance,  p.  84. 

44  Compare  Bohlen's  The  Rule  in  Rylands  v.  Fletcher  in  the  Penn- 
sylvania Law  Review,  Vol.  59,  p.  303. 

45  See  Wigmore's  Responsibility  for  Tortious  Acts:  Its  History 
in  the  Harvard  Law  Review,  Vol.  VII,  pp.  315-357,  383-405,  441- 
456.  The  learned  author  traces  the  development  of  the  law  of  torts 
from  the  absolute  liability  for  unintended  wrongs  of  primitive  Ger- 
manic custom  to  the  "due  care"  test  of  liability  in  the  nineteenth 
century. 

46  On  these  "absolute  liabilities"  for  "acts  done  at  peril",  see 
Bohlen's  The  Rule  in  Rylands  v.  Fletcher  in  the  Pennsylvania  Law 
Review,  Vol.  59,  pp.  298,  306. 

See  also  Pollock  on  Torts,  First  Edition,  ch.  XII. 

47  For  an  early  English  application  of  sic  utere  tuo  ut  alienum 
non  laedas,  see  20  Edward  IV,  placita  10  (1481). 

48  Cooley  on  Torts,  Third  Edition,  pp.  690-705. 

49  Cooley  on  Torts,  Third  Edition,  p.  16 ;  Turberville  vs.  Stamp, 
1  Comyns  32,  91,  English  Reports,  13  (1698). 

50  Pollock  on  Torts,  First  Edition,  pp.  404-406.  See  also  Tona- 
wanda  Railroad  Company  vs.  Munger,  5  Denio  255  (New  York, 
1848). 

51  Fletcher  vs.  Rylands,  Law  Reports,  1  Exchequer,  265,  282 
(1866).  Said  Lord  Blackburn :  "  There  does  not  appear  to  be  any 
difference  in  principle,  between  the  extent  of  the  duty  cast  on  him 


210  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

who  brings  cattle  on  his  land  to  keep  them  in,  and  the  extent  of  the 
duty  imposed  on  him  who  brings  on  his  land,  water,  filth,  or  stenches, 
or  any  other  thing  which  will,  if  it  escape,  naturally  do  damage,  to 
prevent  their  escaping  and  injuring  his  neighbour  ....  the 
duty  is  the  same,  and  is,  to  keep  them  in  at  his  peril. ' ' 

This  doctrine  was  upheld  by  the  House  of  Lords  in  Rylands  vs. 
Fletcher,  Law  Reports,  3  House  of  Lords  330  (1868).  It  was,  how- 
ever, quite  generally  repudiated  in  the  United  States,  owing  to 
different  social  and  political  conditions.  —  See  Bohlen's  The  Rule  in 
Rylands  v.  Fletcher  in  the  Pennsylvania  Law  Review,  Vol.  59,  pp. 
298-325,  373-393. 

A  similar  rule  had  early  been  applied  to  the  case  of  filth  escaping 
without  the  fault  of  the  owner.  —  Tenant  vs.  Golding,  1  Salkeld  21 
(1704) .  "As  one  is  bound  to  keep  his  cattle  from  trespassing  on  his 
neighbour's  ground,  so  he  must  a  heap  of  dung,  if  he  erects  it.  Sic 
utere  tuo  ut  alienum  non  laedas." 

52  See  historical  discussion  by  Mr.  Justice  Gray  in  St.  Louis  and 
San  Francisco  Railway  vs.  Mathews,  165  United  States  1  (1896). 

53  Powell  vs.  Fall,  Law  Reports,  5  Queen's  Bench  Division,  597, 
601  (England,  1880). 

54  The  earliest  "action  on  the  case  for  negligence"  brought  by  an 
employee  against  his  employer,  appears  to  have  been  that  of  Priest- 
ley vs.  Fowler,  3  Meeson  and  Welsby  1  (England,  1837),  wherein 
were  announced  or  foreshadowed  the  doctrines  of  "co-service",  and 
"assumption  of  risk"  and  the  master's  duty  to  use  care  for  his  serv- 
ant's safety.  That  the  workman  assumes  the  risks  of  his  employ- 
ment, including  the  negligence  of  fellow  servants,  was  broadly  laid 
down  in  Murray  vs.  South  Carolina  Railroad  Company,  1  McMullan, 
385  (South  Carolina,  1841).  For  other  early  cases,  which,  while 
authority  for  the  fellow-servant  rule  specifically,  contributed  as  well 
to  the  development  of  other  employers'  liability  doctrines,  see  note 
174  below. 

55Bonar's  Philosophy  and  Political  Economy,  Book  III,  Ch.  II 
and  III.  Cunningham's  Growth  of  English  Industry  and  Com- 
merce, Modern  Times,  Part  II. 

56  Toynbee  's  The  Industrial  Revolution. 


NOTES  AND  REFERENCES  211 

57  "Very  appropriately,  this  exception  [the  fellow-servant  rule] 
was  first  announced  in  South  Carolina,  then  the  citadel  of  human 
slavery.  It  was  eagerly  adopted  in  Massachusetts,  then  the  center 
of  the  factory  system,  where  some  decisions  were  then  made  in  favor 
of  great  corporations,  so  preposterous  that  they  have  been  disre- 
garded in  every  other  state,  without  even  the  compliment  of  refu- 
tation. It  was  promptly  followed  in  England,  which  was  then  gov- 
erned exclusively  by  landlords  and  capitalists. ' '  —  Shearman  and 
Redfield's  The  Law  of  Negligence,  Fifth  Edition,  Introduction,  p. 
VI. 

68  See  Veblen's  The  Theory  of  Business  Enterprise,  Ch.  IV,  and 
authorities  there  cited. 

59 "  So  great,  moreover,  is  the  regard  of  the  law  for  private  prop- 
erty that  it  will  not  authorize  the  least  violation  of  it ;  no  not  even 
for  the  general  good  of  the  whole  community."  —  Blackstone's 
Commentaries  on  the  Laws  of  England,  Vol.  I,  p.  135. 

Mr.  Justice  0  'Neall,  dissenting  from  the  South  Carolina  Court  of 
Errors  in  the  Murray  case,  pointed  out  that  if  the  fireman  had  been 
a  slave  leased  to  the  railroad  company  his  master  would  have  had  an 
unquestionable  right  to  recover  for  his  injury.  —  Murray  vs.  South 
Carolina  Railroad  Company,  1  McMullan  385,  403  (South  Carolina, 
1841). 

60  Smith's  Wealth  of  Nations,  Book  IV,  Ch.  II. 

61  See  Jefferson's  Inaugural  Address,  March  4,  1801,  in  Ford's 
Writings  of  Thomas  Jefferson,  Vol.  VIII,  pp.  1,  4. 

62  Compare  the  language  of  Mr.  Justice  Winslow  in  Borgnis  et  al. 
vs.  Falk  Company,  133  Northwestern  209,  215  (Wisconsin,  1911). 

63Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  p.  22. 

64Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  p.  14. 

65  Chief  Baron  Abinger,  in  the  Priestley  case,  instanced  the  coach- 
maker,  the  harness-maker,  the  coachman,  the  footman,  the  chamber- 
maid, the  cook  and  butler  —  analogies  which  show  that  his  lordship 
was  thinking  of  house  servants  and  handicraftsmen.    He  had  nothing 


212  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

to  say  of  the  applicability  of  his  famous  doctrine  to  factory  hands, 
railway  workers  or  coal  miners  —  to  whom  it  has  most  usually  been 
applied.  —  Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1,  5,  6  (Eng- 
land, 1837). 

Similarly,  Chief  Justice  Shaw  speaks  of  the  ability  of  one  servant 
to  know  and  guard  against  the  negligence  of  a  fellow  servant  in 
terms  appropriate  to  the  co-employees  of  a  petty  shop.  Yet  the  great 
Chief  Justice  was  actually  deciding  the  case  of  a  locomotive  engineer 
injured  by  the  negligence  of  a  switchman  as  to  whose  acts  or  omis- 
sions he  had  no  possible  means  of  information.  —  Farwell  vs.  Boston 
and  Worcester  Railroad  Corporation,  4  Metcalf  49,  59  (Massachu- 
setts, 1842). 

It  is  noteworthy,  in  this  connection,  that  the  doctrine  of  vice- 
principalship  was  overthrown  in  England  "by  the  wholly  irrelevant 
dictum  [in  Wilson  vs.  Merry,  Law  Reports,  1  Scotch  Appeals,  326, 
332  (England,  1868)]  of  two  superannuated  law  lords".  —  Shear- 
man and  Redfield's  The  Law  of  Negligence,  Fifth  Edition,  Intro- 
duction, p.  vi. 

66  Blackstone's  Commentaries,  Vol.  I,  p.  135. 

67  "  [The  assumption  of  extraordinary  risks]  was  first  announced, 
in  all  its  repulsive  nakedness,  by  the  late  Lord  Bramwell,  one  of  the 
straitest  of  the  sect  of  those  economic  Pharisees  whose  Gamaliels 
were  such  writers  as  Ricardo  and  John  Stuart  Mill. ' '  —  Labatt  's 
Employers'  Liability,  Vol.  I,  p.  156. 

68  "A  small  number  of  able  judges,  devoted,  from  varying  mo- 
tives, to  the  supposed  interests  of  the  wealthy  classes,  and  caring 
little  for  any  others,  boldly  invented  an  exception  to  the  general  rule 
of  masters'  liability,  by  which  servants  were  deprived  of  its  protec- 
tion."—  Shearman  and  Redfield's  The  Law  of  Negligence,  Fifth 
Edition,  Introduction,  p.  vi. 

69Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  p.  31;  Labatt 's  Employers'  Liability,  Vol.  II,  p. 
1325  ;  Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1  (England,  1837), 
Lord  Abinger's  remarks  at  p.  6;  Murray  vs.  South  Carolina  Rail- 
road Company,  1  McMullan  385  (South  Carolina,  1841),  dissenting 
opinion  of  Mr.  Justice  O'Neall  at  pp.  403,  404;  Farwell  vs.  Boston 


NOTES  AND  REFERENCES  213 

and  Worcester  Railroad  Corporation,  4  Metcalf  49  (Massachusetts, 
1842)  ;  Schaub  vs.  Hannibal  and  St.  Joseph  Railroad  Company,  106 
Missouri  74,  91  (1891). 

70  See  discussion  in  Ives  vs.  South  Buffalo  Railway  Company,  94 
Northeastern  431,  439-441  (New  York,  1911). 

71  At  primitive  Germanic  law  the  visible  agent  of  an  injury  was 
liable  regardless  of  intent  or  care. — Wigmore's  Responsibility  for 
Tortious  Acts:  Its  History  in  the  Harvard  Law  Review,  Vol.  VII, 
pp.  315-357. 

Professor  Bohlen,  in  his  article  on  The  Rule  in  Rylands  v. 
Fletcher  in  the  Pennsylvania  Law  Review,  Vol.  59,  pp.  298,  306-310, 
points  out  that  all  the  so-called  ''acts  done  at  peril"  were  such  as 
would  frequently  occur  in  a  primitive  community  and  that  the  rule 
of  absolute  liability  for  these  acts  is  to  be  regarded  as  a  survival  of 
primitive  law. 

72  See  below,  p.  25. 

73  See  Cooley  on  Torts,  Third  Edition,  p.  62. 

74Coggs  vs.  Bernard,  2  Lord  Raymond  909  (England,  1703). 
Said  Lord  Holt  (at  p.  918)  "The  law  charges  this  person  [a  com- 
mon carrier]  thus  entrusted  to  carry  goods,  against  all  events  but 
acts  of  God,  and  of  the  enemies  of  the  King.  .  .  .  And  this  is  a 
politick  establishment,  contrived  by  the  policy  of  the  law,  for  the 
safety  of  all  persons,  the  necessity  of  whose  affairs  obliges  them  to 
trust  these  sorts  of  persons,  that  they  may  be  safe  in  their  ways  of 
dealing.  .  .  .  And  this  is  the  reason  the  law  is  founded  upon  in 
that  point. ' ' 

For  the  common  law  liability  of  inn-keepers  see  Cooley  on  Torts, 
Third  Edition,  pp.  1338-1345. 

75  Wigmore's  Responsibility  for  Tortious  Acts:  Its  History  in  the 
Harvard  Law  Review,  Vol.  VII,  pp.  441-456,  especially  p.  454. 

76 1 1  rp^g  jaw  never  implies  an  obligation  in  relation  to  a  matter 
about  which  the  parties  are,  or  may,  with  proper  diligence,  be  equally 
informed.  .  .  .  The  common  case  of  the  warranty  of  the  sound- 
ness of  a  horse,  notoriously  blind,  may  be  put  in  illustration.  The 
warranty  does  not  extend  to  the  goodness  of  the  eyes,  because  the 


214  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

purchaser  knew,  or  might  have  known,  with  proper  care,  that  they 
were  defective. ' '  —  Concurring  opinion  of  Chancellor  Johnson  in 
Murray  vs.  South  Carolina  Railway  Company,  1  McMullan  385,  402 
(South  Carolina,  1841). 

77  "Throughout  it  is  seen  that  the  obligation  to  do  more  than  af- 
ford others  the  opportunity  to  protect  themselves  is  anomalous  and 
exceptional."  —  Bohlen's  Voluntary  Assumption  of  Risk  in  the 
Harvard  Law  Review,  Vol.  XX,  pp.  15,  16. 

78  Ilott  vs.  Wilkes,  3  Barnewald  and  Alderson  304  (England, 
1820).  —  One  who  enters  a  wood  with  notice  that  spring  guns  have 
been  set  therein,  though  he  does  not  know  the  precise  location  of  any 
gun,  takes  on  himself  the  risk  of  injury  from  such  guns. 

Said  Lord  Justice  Bowen,  in  Thomas  vs.  Quartermaine,  Law  Re- 
ports, 18  Queen's  Bench  Division,  685  (England,  1887)  :  "Quite 
apart  from  the  relation  of  master  and  servant,  and  independent  al- 
together of  it,  one  man  cannot  sue  another  in  respect  of  a  danger  or 
risk,  not  unlawful  in  itself,  that  was  visible,  apparent,  and  volun- 
tarily encountered  by  the  injured  person." 

79  Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  p.  15. 

80  Pound's  Liberty  of  Contract  in  the  Yale  Law  Journal,  Vol. 
XVIII,  p.  454. 

81  See  below,  pp.  64,  65. 

82 1  i  rp^  servant  js  not  bound  to  risk  his  safety  in  the  service  of  his 
master,  and  may,  if  he  thinks  fit,  decline  any  service  in  which  he 
reasonably  apprehends  injury  to  himself".  —  Priestley  vs.  Fowler, 
3  Meeson  and  Welsby  1  (England,  1837),  Lord  Abinger's  opinion 
at  p.  6. 

83  Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  pp.  14-34,  91-115. 

84  Said  Blackstone :  ' '  The  public  good  is  in  nothing  more  essen- 
tially interested,  than  in  the  protection  of  every  individual 's  private 
rights".  —  Commentaries  on  the  Laws  of  England,  Vol.  I,  p.  135. 

Per  contra,  one  of  the  most  eminent  of  modern  jurists  writes  that 
the  end  of  law  is  ' '  the  securing,  under  the  form  of  constraint,  of  the 


NOTES  AND  REFERENCES  215 

vital  conditions  of  society."  —  Ihering's  Der  Zweck  im  Recht,  Vol. 
I,  p.  435.  Georg  Jellinek  defines  law  as  "the  sum  of  conditions 
necessary  for  the  maintenance  of  society. ' '  —  Die  sozial  ethische 
Bedeutung  vom  Recht,  Unrecht,  und  Straf,  p.  42.  And  Mr.  Alfred 
P.  Thorn,  in  a  brief  filed  for  the  Federal  Employers'  Liability  Com- 
mission, states:  "It  is  and  should  be  a  function  of  legislation,  ex- 
cept as  forbidden  by  constitutional  restrictions,  to  modify  social  re- 
lationships and  to  readjust  social  burdens  in  accordance  with  public 
necessities,  and  an  enlightened  public  policy."  —  Report  of  the 
Employers'  Liability  and  Workmen's  Compensation  Commission, 
Sixty-second  Congress,  Second  Session,  Senate  Document,  No.  338, 
Vol.  II,  p.  403. 

85  "  If  Coke  were  to  come  among  us  ....  he  would  be 
thoroughly  at  home  in  our  constitutional  law.  There  he  would  see 
the  development  and  the  fruition  of  his  Second  Institute.  All  that 
might  surprise  him  would  be  that  so  much  had  been  taken  from  and 
made  of  his  labors  with  so  little  recognition  of  the  source. ' '  — 
Pound's  Do  We  Need  a  Philosophy  of  Law?  in  the  Columbia  Law 
Review,  Vol.  V,  p.  342. 

se  <  <  There  is  at  least  one  field  in  which  the  elasticity  of  the  common 
law  and  even  perhaps  of  what  may  be  called  the  common  law  idea, 
has  proved  no  match  for  the  strain  put  upon  it  by  the  development 
of  modern  life,  —  a  field  in  which  all  Europe,  including  Great  Brit- 
ain, has  struck  at  the  roots  of  a  fundamental  doctrine  both  of  the 
civil  and  the  common  law,  but  in  which  the  United  States  remains 
virtually  at  a  standstill.  This  is  the  field  of  what  is  with  us  still, 
Employers'  Liability  for  Damages."  —  Warner's  Employers'  Lia- 
bility as  an  Industrial  Problem  in  The  Green  Bag,  Vol.  XVIII, 
p.  185. 

87  Compare  Labatt's  Employers'  Liability,  Preface,  pp.  viii,  ix. 

88  Compare  Labatt's  Employers'  Liability,  Ch.  I. 

89  Galloway  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 87  Iowa  458  (1893)  ;  McCaull  vs.  Bruner,  91  Iowa  214  (1894)  ; 
Rusch  vs.  City  of  Davenport,  6  Iowa  443  (1858). 

To  constitute  actionable  negligence  there  must  be  a  breach  of  duty 
imposed  by  law.  —  Dillon  vs.  Iowa  Central  Railway  Company,  118 


216  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Iowa  645   (1902)  ;  Boston  Insurance  Company  vs.  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  118  Iowa  423  (1902). 

90  The  master  ' '  is,  no  doubt,  bound  to  provide  for  the  safety  of 
his  servant  in  the  course  of  his  employment,  to  the  best  of  his  judg- 
ment, information  and  belief. ' '  —  Priestley  vs.  Fowler,  3  Meeson 
and  Welsby  1,  6  (England,  1837). 

91  Forbes  vs.  Boone  Valley  Coal  and  Railway  Company,  113  Iowa 
94,  99  (1901)  ;  Taylor  vs.  Star  Coal  Company,  110  Iowa  40,  48 
(1899)  ;  Fink  vs.  Des  Moines  Ice  Company,  84  Iowa  321,  324  (1892)  ; 
see  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  724, 
731  (1906),  where  various  statements  of  the  master's  duty  are  dis- 
cussed. 

92  Trcka  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  100  Iowa  205,  208  (1896)  ;  Forbes  vs.  Boone  Valley  Coal 
and  Railway  Company,  113  Iowa  94,  99  (1901)  ;  Young  vs.  Bur- 
lington Wire  Mattress  Company,  79  Iowa  415,  417  (1890). 

93  Fitter  vs.  Iowa  Telephone  Company,  143  Iowa  689,  692  (1909)  ; 
Way  vs.  Chicago  and  Northwestern  Railway  Company,  76  Iowa  393 
(1888)  ;  Hathaway  vs.  Illinois  Central  Railway  Company,  92  Iowa 
337,  340  (1894)  ;  Luisi  vs.  Chicago  Great  Western  Railway  Com- 
pany, 136  Northwestern  322  (1912). 

94  Hamm  vs.  Bettendorf  Axle  Company,  147  Iowa  681,  687  (1910)  ; 
Cooper  vs.  Central  Railroad  of  Iowa,  44  Iowa  134,  136  (1876)  ; 
Hunter  vs.  North  Iowa  Brick  and  Tile  Company,  136  Northwestern 
515,  517,  518  (Iowa,  1912). 

95  Beardsley  vs.  Murray  Iron  Works,  129  Iowa  675  (1906).  In- 
experienced employees  should  have  been  told  how  they  might  safely 
roll  a  heavy  wheel. 

Hazlerigg  vs.  Dobbins,  145  Iowa  495,  499  (1909) .  A  boy  of  four- 
teen should  have  been  instructed  to  avoid  dangling  his  feet  while 
riding  on  the  sweep  of  a  horsepower. 

But  the  master  is  not  bound  to  instruct  an  experienced  employee. 
—  Hanson  vs.  Hammell,  107  Iowa  171,  176  (1898). 

9G  Hendrickson  vs.  United  States  Gypsum  Company,  133  Iowa  89, 


NOTES  AND  REFERENCES  217 

90  (1907).  It  is  the  duty  of  a  mine  operator  to  warn  employees  of 
an  expected  explosion  in  blasting. 

Sidwell  vs.  Economy  Coal  Company,  130  Northwestern  729  (Iowa, 
1911).  An  inexperienced  miner  should  have  been  warned  of  the 
danger  from  falls  of  roof. 

"The  duty  of  the  master  to  instruct  and  warn  a  servant  only 
arises  as  to  dangers  which  the  master  knows  or  has  reason  to  be- 
lieve the  servant  is  ignorant  of."  Hence  a  mine  operator  was  not 
required  to  warn  an  experienced  youth  as  to  the  danger  of  enter- 
ing the  cage  while  the  engineer  was  working  the  water  out  of  the 
cylinders,  preparatory  to  starting.  —  Mericle  vs.  Acme  Cement  Plas- 
ter Company,  136  Northwestern  916,  919  (Iowa,  1912). 

97 ' '  Care  in  furnishing  a  safe  place  at  the  beginning  of  the  em- 
ployment must  be  followed  by  reasonable  supervision,  inspection, 
and  care  to  keep  it  safe  until  the  relation  of  master  and  servant  is  at 
an  end. ' '  —  Winslow  vs.  Commercial  Building  Company,  147  Iowa 
238,241,242  (1910). 

' '  It  will  not  do  to  say  that,  having  furnished  suitable  and  proper 
machinery  and  appliances,  the  [railway]  corporation  can  there- 
after remain  passive.  The  duty  of  inspection  is  affirmative  and  must 
be  continuously  fulfilled,  and  positively  performed. ' '  —  Brann  vs. 
Chicago,  Rock  Island  and  Pacific  Railway  Company,  53  Iowa  595, 
597  (1880). 

Inspection  by  a  public  authority  does  not  relieve  the  employer  of 
his  own  duty  in  discovering  and  repairing  defects,  and  the  failure 
of  an  official  inspector  to  discover  a  defect  in  a  particular  appliance 
which  he  is  not  shown  to  have  inspected,  is  not  proof  of  the  absence 
of  such  defect.  —  Brusseau  vs.  Lower  Brick  Company,  133  Iowa 
245,247  (1907). 

On  duty  of  inspection  see  also :  Morris  vs.  Excelsior  Coal  Com- 
pany, 95  Iowa  639,  640  (1895)  ;  Shebeck  vs.  National  Cracker  Com- 
pany, 120  Iowa  414,  417  (1903)  ;  Hamm  vs.  Bettendorf  Axle  Com- 
pany, 147  Iowa  681,  687  (1910)  ;  Barto  vs.  Iowa  Telephone 
Company,  126  Iowa  241,  244  (1904)  ;  Mosgrove  vs.  Zimbleman  Coal 
Company,  110  Iowa  169,  172  (1899). 

98  Lanza  vs.  LeGrand  Quarry  Company,  115  Iowa  299,  302 
(1902). 


218  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

99  i  <  rp^  piace  in  which  an  employee  is  directed  to  work  is  '  safe, ' 
within  the  meaning  of  the  law,  'when  all  the  safeguards  and  pre- 
cautions which  ordinary  experience,  prudence,  and  foresight  would 
suggest  have  been  taken  to  prevent  injury  to  the  employee  while  he 
is  himself  exercising  reasonable  care  in  the  service  which  he  under- 
takes to  perform. '  "  —  Peterson  vs.  Chicago,  Rock  Island  and  Pa- 
cific Railway  Company,  149  Iowa  496,  498  (1910).  See  also,  Hunt 
vs.  Chicago  and  Northwestern  Railroad  Company,  26  Iowa  363,  369 
(1868)  ;  Brusseau  vs.  Lower  Brick  Company,  133  Iowa  245,  249 
(1907). 

100  "Reasonable  care",  Greenleaf  vs.  Illinois  Central  Railroad 
Company,  29  Iowa  14,  42  (1870)  ;  "ordinary  and  all  reasonable  care 
and  supervision",  McKee  vs.  Chicago,  Rock  Island  and  Pacific  Rail- 
way Company,  83  Iowa  616,  619  (1891)  ;  "all  reasonable  precau- 
tion", Cooper  vs.  Central  Railroad  of  Iowa,  44  Iowa  134, 136  (1876). 

101  In  Gould  vs.  Schermer,  101  Iowa  582,  591  (1897),  ordinary 
care  is  defined  as  ' '  the  conduct  of  an  ideal  average  prudent  man. ' ' 

For  other  definitions  see  Galloway  vs.  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  87  Iowa  458,  468  (1893)  ;  Corson  vs. 
Coal  Hill  Coal  Company,  101  Iowa  224  (1897)  ;  McCaull  vs.  Bruner, 
91  Iowa  214  (1894)  ;  Rusch  vs.  City  of  Davenport,  6  Iowa  443 
(1858). 

102  Murphy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 38  Iowa  539,  543  (1874). 

103  Brann  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
53  Iowa  595,  597  (1880)  ;  Stockwell  vs.  Chicago  and  Northwestern 
Railway  Company,  106  Iowa  63  (1898). 

104  Brown  vs.  West  Riverside  Coal  Company,  143  Iowa  662,  668 
(1909). 

105  Scott  vs.  Iowa  Telephone  Company,  126  Iowa  524  (1905); 
Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  724  (1906). 

106  Meloy  vs.  Chicago  and  Northwestern  Railway  Company,  77 
Iowa  743  (1889). 

107Magee  vs.  Chicago  and  Northwestern  Railway  Company,  82 
Iowa  249  (1891). 


NOTES  AND  REFERENCES  219 

108  Brownfield  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 107  Iowa  254  (1899). 

109  Cushman  vs.  Carbondale  Fuel  Company,  116  Iowa  618  (1902) ; 
Blazenic  vs.   Iowa  and  Wisconsin  Coal  Company,   102  Iowa  706 

(1897). 

110  Forbes  vs.  Boone  Valley  Coal  and  Railway  Company,  113  Iowa 
94  (1901)  ;  Young  vs.  Burlington  Wire  Mattress  Company,  79  Iowa 
415  (1890). 

111  Burns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
69  Iowa  450  (1886). 

112  Bryce  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  119  Iowa 274  (1903). 

113  Young  vs.  Burlington  Wire  Mattress  Company,  79  Iowa  415 
(1890).  —  Failure  to  cover  knives  of  tenon-machine. 

114  Hall  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
116  Northwestern  113  (Iowa,  1908)  ;  Cooper  vs.  Central  Railroad 
of  Iowa,  44  Iowa  134  (1876). 

115  Kirby  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
129  Northwestern  963  (Iowa,  1911). 

But  where  a  safety  appliance  is  in  common  use  a  jury  may  find 
that  the  master  is  negligent  in  not  adopting  it  or  some  other  ap- 
pliance equally  safe.  —  Harney  vs.  Chicago,  Rock  Island  and  Pa- 
cific Railway  Company,  115  Northwestern  886  (Iowa,  1908). 

116  Hamilton  vs.  Des  Moines  Valley  Railroad  Company,  36  Iowa  31 
(1872)  ;  Allen  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  64  Iowa  94  (1884)  ;  Hosic  vs.  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  75  Iowa  683  (1888)  ;  Kirby  vs.  Chicago, 
Rock  Island  and  Pacific  Railway  Company,  129  Northwestern  963 
(Iowa,  1911). 

117  O'Connell  vs.  Smith,  141  Iowa  1,  3  (1909)  ;  Austin  vs.  Chicago, 
Rock  Island  and  Pacific  Railway,  93  Iowa  236  (1895). 

118  Ives  vs.  Welden,  114  Iowa  476  (1901)  ;  Messenger  vs.  Pate,  42 
Iowa  443  (1876)  ;  Pike  vs.  Cedar  Rapids  and  Marion  Railway  Com- 
pany, 131  Northwestern  50  (Iowa,  1911). 


220  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

119  Chicago,  Milwaukee  and  St.  Paul  Railway  Company  vs.  Voelk- 
er,  129  Federal  Reports  522  (1904). 

120  Pike  vs.  Cedar  Rapids  and  Marion  Railway  Company,  131 
Northwestern  50  (Iowa,  1911). 

121  Galloway  vs.  Agar  Packing  Company,  129  Iowa  1  (1905)  ; 
O'Connell  vs.  Smith,  141  Iowa  1,  3  (1909)  ;  Stephenson  vs.  Shef- 
field Brick  and  Tile  Company,  130  Northwestern  586,  588  (Iowa, 
1911)  ;  Verlin  vs.  United  States  Gypsum  Company,  135  Northwest- 
ern 402,  403  (Iowa,  1912). 

122  McCreery  vs.  Union  Roofing  &  Manufacturing  Company,  143 
Iowa  303,  306  (1909). 

123  Mosgrove  vs.  Zimhleman  Coal  Company,  110  Iowa  169  (1899). 

124  Tobey  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  94  Iowa  256  (1895). 

125  Baker  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
95  Iowa  163  (1895).  A  section  hand,  walking  home  on  the  track 
after  his  day's  work,  is  not  within  the  line  of  his  duty  and  is  to  be 
treated  as  a  trespasser,  notwithstanding  he  had  been  told  by  his 
foreman  to  notice  the  condition  of  the  track  whenever  he  should 
pass  over  it. 

126  Where  a  "clinker  man",  employed  in  a  round  house,  was  in- 
jured while  aiding  in  shifting  certain  round  house  tracks,  a  work 
which  he  had  done  for  years,  with  the  knowledge  of  other  employees 
of  the  defendant,  the  defendant  could  not  escape  liability  on  the 
ground  that  the  plaintiff  was  out  of  the  line  of  his  duty,  and  acting 
as  a  mere  volunteer.  —  Butler  vs.  Chicago,  Burlington  and  Quincy 
Railway  Company,  87  Iowa  206  (1893). 

127  Hardy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 127  Northwestern  1093  (Iowa,  1910). 

128  Newbury  vs.  Getchell  &  Martin  Manufacturing  Company,  100 
Iowa  441  (1896).  A  minor  was  set  at  work  more  dangerous  than 
that  for  which  he  was  employed.  See  also  Hardy  vs.  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  127  Northwestern  1093  (Iowa, 
1910),  for  a  case  in  which  a  foreman  ordered  plaintiff  to  pour 
powder  into  a  newly  ' '  sprung ' '  hole. 


NOTES  AND  REFERENCES  221 

129  Handelun  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  72  Iowa  709  (1887). 

130  Liming  vs.  Illinois  Central  Railway  Company,  81  Iowa  246 
(1890). 

131  Watson  vs.  Dilts,  116  Iowa  249,  252  (1902). 

132  MeKee  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com 
pany,  83  Iowa  616,  618  (1891),  where  it  was  held  that  the  railway 
company  was  not  bound  to  anticipate  that  a  brakeman  might  be  on 
the  side  ladder  of  a  box-car,  and  leaning  out,  while  the  train  passed 
an  ordinary  road  crossing,  hence  was  not  negligent  in  placing  a 
wing-fence  at  such  crossing  too  near  the  track  to  be  cleared  by  one 
in  such  position. 

133  Doyle  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway  Com- 
pany, 77  Iowa  607  (1889).  A  loose  coupling-pin,  hurled  from  the 
bumper  of  a  car  on  a  passing  train,  struck  and  disabled  a  bridgeman 
rightfully  standing  near  the  track.  Held  that  the  company  was 
liable  because,  although  this  particular  accident  could  not  have  been 
foreseen,  yet  the  presence  of  the  loose  pin  was  a  negligent  act  from 
which  some  injury  might  reasonably  have  been  anticipated. 

See  also  Shearman  and  Redfield's  The  Law  of  Negligence,  Fifth 
Edition,  Sec.  30. 

134  Gould  vs.  Schermer,  101  Iowa  582  (1897)  ;  Madden  vs.  Saylor 
Coal  Company,  133  Iowa  699  (1907). 

135  Brown  vs.  West  Riverside  Coal  Company,  143  Iowa  662,  671 
(1909).  Defendant's  negligent  storing  of  powder  concurred  with  a 
stroke  of  lightning  to  produce  explosion  which  killed  plaintiff  in- 
testate. See  also  Green-Wheeler  Shoe  Company  vs.  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  130  Iowa  123  (1906).  De- 
fendant's delay  in  shipping  goods  concurred  with  flood  to  damage 
property. 

Vyce  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  126 
Iowa  90  (1904).  Plaintiff's  land  was  flooded  by  back  water  from 
insufficient  bridge. 

136  Baird  vs.  Morford,  29  Iowa  531  (1870). 


222  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

137  Keist  vs.  Chicago  and  Great  Western  Railway  Company,  110 
Iowa  32  (1899). 

138  pjerson  VSm  Chicago  and  Northwestern  Railway  Company,  127 
Iowa  13  (1905)  ;  Keist  vs.  Chicago  and  Great  Western  Railway  Com- 
pany, 110  Iowa  32  (1899). 

139  An  estimate  of  the  Imperial  Insurance  Office  of  Germany  at- 
tributes 39.83%  of  81,248  accident  cases  to  general  hazard  of  the 
industry  and  to  chance,  act  of  God,  etc.  —  Bulletin  of  the  United 
States  Bureau  of  Labor,  No.  92,  Table  12,  pp.  64,  65. 

The  Minnesota  Bureau  of  Labor  estimates  that  56%  of  industrial 
accidents  are  due  to  the  hazards  of  industry.  —  Twelfth  Biennial 
Report  of  the  Bureau  of  Labor,  Minnesota,  p.  188.  The  Wisconsin 
Bureau  of  Labor  gives  an  estimate  of  52.1%  as  due  to  the  hazards 
of  industry.  —  Bureau  of  Labor  and  Statistics,  Wisconsin,  1907- 
1908,  p.  4. 

The  exact  percentage  largely  depends  on  the  arbitrary  choice  of 
the  compiler.  Very  many  accidents  attributed  by  the  German  au- 
thorities, e.  g.,  to  the  "fault"  of  the  employer  or  of  workmen  are 
really  due  to  the  shortcomings  of  average  human  nature  (see  below, 
p.  52).  Such  accidents  might  have  been  prevented  if  employers 
and  workmen  were  other  than  they  are.  Human  nature  being,  un- 
fortunately, what  it  is,  these  accidents  were  as  inevitable  as  any 
other  and  ought,  in  reason,  to  be  charged  to  the  general  hazard  of 
industry. 

140  <  t  ppke  generaj  rule,  resulting  from  considerations  as  well  of 
justice  as  of  policy,  is,  that  he  who  engages  in  the  employment  of 
another  for  the  performance  of  specified  duties  and  services,  for 
compensation,  takes  upon  himself  the  natural  and  ordinary  risks 
and  perils  incident  to  the  performance  of  such  services,  and  in  legal 
presumption,  the  compensation  is  adjusted  accordingly."  —  Chief 
Justice  Shaw's  opinion  in  Farwell  vs.  Boston  and  Worcester  Rail- 
road Corporation,  4  Metcalf  49,  57  (Massachusetts,  1842). 

The  learned  chief  justice  did  not  say  where  or  how  this  ' '  general 
rule"  originated,  nor  did  he  cite  any  authority  in  support  of  his 
proposition.  Mr.  Justice  Evans,  equally  without  citation  of  au- 
thorities, said,  in  Murray  vs.  South  Carolina  Railroad  Company,  1 
McMullan  385,  401   (South  Carolina,  1841),  "It  is  admitted  he 


NOTES  AND  REFERENCES  223 

takes  upon  himself  the  ordinary  risks  of  his  vocation ;  why  not  the 
extraordinary  ones  ? ' ' 

See  also  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company, 
11  Iowa  421,  424  (1860)  ;  Martin  vs.  Des  Moines  Edison  Light  Com- 
pany, 131  Iowa  724  (1906). 

141  Martin  vs.  Chicago,  Rock  Island  and  Pacific  Railroad  Com- 
pany, 118  Iowa  148  (1902)  ;  Martin  vs.  Des  Moines  Edison  Light 
Company,  131  Iowa  724  (1906). 

142Bohlen's  The  Voluntary  Assumption  of  Risk  in  the  Harvard 
Law  Review,  Vol.  XX,  p.  31,  footnote. 

143  "Warner's  Employers'  Liability  as  an  Industrial  Problem  in 
The  Green  Bag,  Vol.  XVIII,  p.  187. 

144  See  above,  Ch.  II. 

145  <<  when  the  employer,  or  those  representing  him  has  provided 
a  place  which  is  reasonably  safe  in  itself,  and  has  furnished  reason- 
ably safe  tools  and  appliances  and  reasonably  competent  fellow 
workmen,  then  the  risk  incident  to  the  progress  of  the  work  as  car- 
ried on  by  the  employees  is  assumed  by  virtue  of  the  employment, 
and  for  an  injury  received  in  the  prosecution  of  the  work  in  such 
place  with  such  appliances  and  in  connection  with  such  fellow  work- 
men, the  employe  cannot  recover  from  the  employer. ' '  —  Mc- 
Queeny  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
120  Iowa  522  (1903).  See  also  Martin  vs.  Des  Moines  Edison  Light 
Company,  131  Iowa  724,  735  (1906). 

146  See  above,  p.  15. 

147  Kerns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
94  Iowa  121  (1895). 

148  Conners  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  74  Iowa  383  (1888). 

149 ' '  Every  person,  in  undertaking  to  work,  assumes  the  risks  ordi- 
narily incident  to  his  employment ;  that  is,  he  agrees  to  labor  in  the 
situation  and  with  the  tools  provided  in  so  far  as  the  condition  of 
these  are  apparent  or  may  be  ascertained  by  the  exercise  of  ordinary 
diligence  and  care. ' '  —  "Wilder  vs.  Great  "Western  Cereal  Company, 
130  Iowa  263,  269  (1906). 


224  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

150  Olson  vs.  Hanford  Produce  Company,  118  Iowa  55  (1902). 

151  Wilder  vs.  Great  Western  Cereal  Company,  130  Iowa  263 
(1906). 

152  Patton  vs.  Central  Iowa  Railway  Company,  73  Iowa  306 
(1887).  Trainmen  assume  the  risks  that  cattle  will  stray  onto  an 
unfenced  right  of  way. 

153  Dowell  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  62  Iowa  629  (1883).  The  additional  risks  from  snow  and 
ice  and  from  its  removal  by  snow  plows  are  among  those  neces- 
sarily attendant  upon  the  operation  of  railroads  and  are  assumed  by 
railway  trainmen. 

154  "All  risks  which  are  naturally  or  necessarily  incident  to  the 
service ' '.  —  Sankey  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  118  Iowa  39,  45  (1902). 

155  j)uree  vs  Chicago,  Milwaukee  and  St.  Paul  Railway  Com- 
pany, 118  Iowa  640  (1902). 

156  Wahlquist  vs.  Maple  Grove  Coal  and  Mining  Company,  116 
Iowa  720  (1902). 

157  Oleson  vs.  Maple  Grove  Coal  and  Mining  Company,  115  Iowa 
74  (1901). 

158  Nugent  vs.  Cudahy  Packing  Company,  126  Iowa  517  (1905). 

159  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  724 
(1906)  ;  Bruns  vs.  North  Iowa  Brick  Company,  130  Northwestern 
1083,  1084  (Iowa,  1911). 

160  Stomne  vs.  Hanford  Produce  Company,  108  Iowa  137  (1899)  ; 
Wilder  vs.  Great  Western  Cereal  Company,  130  Iowa  263  (1906). 

161  Mayes  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 63  Iowa  562  (1884). 

162  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  724 
(1906)  ;  McQueeny  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway 
Company,  120  Iowa  522  (1903). 

163  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  724 
(1906)  ;  Duffey  vs.  Consolidated  Block  Coal  Company,  147  Iowa 


NOTES  AND  REFERENCES  225 

225,  228  (1910)  ;  Beresford  vs.  American  Coal  Company,  124  Iowa 
34  (1904). 

104  Respondeat  superior  appears  to  have  originated  in  the  days  of 
bond-servants  for  whose  tortious  acts  the  liability  of  the  master  af- 
forded the  only  efficient  remedy.  —  Kent's  Commentaries  on  Ameri- 
can Law,  Twelfth  Edition,  p.  260,  note  1 ;  0.  W.  Holmes's  The  Ar- 
rangement of  the  Law  in  American  Law  Review,  Vol.  VII,  pp.  46, 
61,  62. 

165  The  "scope  of  employment"  test  of  master's  liability  was 
evolved  under  Lord  Kenyon,  near  the  beginning  of  the  nineteenth 
century.  —  See  Ellis  vs.  Turner,  8  Term  Reports  531  (England, 
1800)  ;  M'Manus  vs.  Crickett,  1  East  107  (England,  1800)  and  Wig- 
more 's  Responsibility  for  Tortious  Acts:  Its  History  in  the  Harvard 
Law  Review,  Vol.  VII,  pp.  399,  ff. 

In  the  eighteenth  century  the  master's  liability  was  grounded  on 
the  fiction  of  "implied  command  or  consent".  —  Blackstone's  Com- 
mentaries on  the  Laws  of  England,  Vol.  I,  p.  417 ;  and  Professor 
Wigmore's  article  in  the  Harvard  Law  Review,  Vol.  VII,  pp.  392,  ff. 

At  primitive  Germanic  law,  and  in  England  so  late  even  as  the 
twelfth  century,  the  master  was  responsible  for  every  tort  committed 
by  a  member  of  his  household.  —  Wigmore  's  Responsibility  for 
Tortious  Acts:  Its  History  in  the  Harvard  Law  Review,  Vol.  VII, 
pp.  399,  ff. 

166  Shearman  and  Redfield 's  The  Law  of  Negligence,  Fifth  Edi- 
tion, Sec.  141 ;  Cooley  on  Torts,  Third  Edition,  p.  1016. 

167  "  I  am  liable  for  what  is  done  for  me  and  under  my  orders  by 
the  man  I  employ,  for  I  may  turn  him  off  from  that  employ  when  I 
please;  and  the  reason  that  I  am  liable  is  this;  that  by  employing 
him  I  set  the  whole  thing  in  motion ;  and  what  he  does,  being  done 
for  my  benefit  and  under  my  direction,  I  am  responsible  for  the  con- 
sequences of  doing  it."  —  Opinion  of  Lord  Brougham,  in  House  of 
Lords,  Duncan  vs.  Findlater,  6  Clark  and  Finnelly  894,  910  (Eng- 
land, 1839). 

"  [The  master]  is  considered  as  bound  to  guarantee  third  persons 
against  all  hurt  arising  from  the  carelessness  of  himself  or  of  those 
acting  under  his  orders  in  the  course  of  his  business. ' '  —  Opinion 


226  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

of  Lord  Cranworth  in  Bartonshill  Coal  Company  vs.  Reid,  3  Mac- 
queen,  House  of  Lords,  266,  283  (England,  1858). 

"I  am  answerable  for  the  wrongs  of  my  servant  or  agent,  not  be- 
cause he  is  authorized  by  me,  or  personally  represents  me,  but  be- 
cause he  is  about  my  affairs,  and  I  am  bound  to  see  that  my  affairs 
are  conducted  with  due  regard  to  the  safety  of  others."  —  Pollock 
on  Torts,  First  Edition,  p.  68. 

168  Shearman  and  Redfield's  The  Law  of  Negligence,  Fifth  Edi- 
tion, p.  219. 

169  Said  Baron  Bramwell,  in  Collett  vs.  Foster,  2  Hurlstone  and 
Norman  356,  361  (England,  1857)  :  "I  have  a  great  desire  in  all 
cases  to  make  the  actual  wrong  doer  alone  responsible,  and  to  limit 
the  doctrine  of  'respondeat  superior.''  " 

Said  the  Supreme  Court  of  Louisiana,  in  Shea  vs.  Reems,  36 
Louisiana  Annual  Reports  966,  969  (1884)  :  "We  never  apply  this 
rule  [respondeat  superior]  without  a  sense  of  its  hardship  on  the 
master". 

Similar  expressions  of  judicial  feeling  were  not  uncommon  in  the 
third  quarter  of  the  last  century.  See  Hays  vs.  Millar,  77  Pennsyl- 
vania State  Reports  238,  242  (1874)  ;  Smith  vs.  Keal,  Law  Reports, 
9  Queen's  Bench  Division,  340  (England,  1882),  remarks  of  Man- 
isty,  J.,  at  p.  344. 

170  Bohlen's  Voluntary  Assumption  of  Risk  in  the  Harvard  Law 
Review,  Vol.  XX,  p.  31,  and  note  No.  228  below. 

171  Shearman  and  Redfield's  The  Law  of  Negligence,  Introduc- 
tion, p.  vi. 

172  Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1  (England,  1837), 
remarks  of  Chief  Baron  Abinger  at  pp.  6  and  7. 

173  Murray  vs.  South  Carolina  Railroad  Company,  1  McMullan 
385  (South  Carolina,  1841).    The  decision  was  by  a  divided  court. 

Chancellor  Johnson  remarked  (pp.  401,  402)  :  "The  foundation 
of  all  legal  liability,  is  the  omission  to  do  some  act  which  the  law 
commands,  the  commission  of  some  act  which  the  law  prohibits,  or 
the  violation  of  some  contract.  .  .  .  There  is  no  law  regulating 
the  relative  duties  of  the  owners  of  a  steam  car,  and  the  persons 
employed  by  them  to  conduct  it.     The  liability,  if  any  attaches, 


NOTES  AND  REFERENCES  227 

must  therefore  arise  out  of  the  contract.  .  .  .  The  plaintiff,  in 
consideration  that  the  defendants  would  pay  him  so  much  money, 
undertook  to  perform  the  service  of  fireman.  .  .  .  This  is  all 
that  is  expressed.  Is  there  anything  more  implied?  ....  The 
law  never  implies  an  obligation  in  relation  to  a  matter  about  which 
the  parties  are  or  may,  with  proper  diligence,  be  equally  in- 
formed. .  .  .  With  proper  diligence  and  prudence,  he  [the 
plaintiff]  might  have  been  as  well,  and  it  does  not  follow  that  he 
might  not  have  been  better,  informed  than  the  defendants  about  the 
fitness  and  security  of  all  the  appointments  connected  with  the 
train.  If  he  was  not,  it  was  his  own  want  of  prudence,  for  which 
defendants  are  not  responsible.  If  he  was,  he  will  be  presumed  to 
have  undertaken  to  meet  all  the  perils  incident  to  the  employ- 
ment.    .     .     . 

There  is  not  the  least  analogy  between  this  case  and  that  of  com- 
mon carriers  of  goods  ....  [instanced  in  Judge  O'Neall's 
dissenting  opinion.]  They  are  liable  in  respect  to  the  price 
paid.  .  .  .  The  plaintiff  paid  nothing  for  his  transportation; 
on  the  contrary,  he  was  to  be  paid  for  his  labor,  and  for  the  perils 
to  which  he  was  exposed,  as  incident  to  his  employment. 

Judge  Evans  (pp.  400,  401)  was  of  opinion  that  the  contract  of 
employment  did  not  bind  the  company  to  guarantee  one  employee 
against  the  negligence  of  another  and  could  ' '  see  no  reason  for  add- 
ing this  to  the  already  known  and  acknowledged  liability  of  a  car- 
rier, without  a  single  case  or  precedent  to  sustain  it. ' '  He  suggested 
that  there  was  a  "joint  undertaking,  wherein  the  employees  were 
not  responsible  to  the  company  for  the  conduct  of  each  other,  and 
the  company  was  not  liable  to  one  for  the  misconduct  of  another. 

Neither  Evans  nor  Johnson  argued  the  question  of  respondeat 
superior  which,  apparently,  should  have  controlled  the  decision. 
Judge  O'Neall  filed  a  vigorous  dissenting  opinion  (p.  403)  which 
anticipates  many  of  the  later  criticisms  of  the  fellow-servant  rule. 

174  For  the  cases  see  Shearman  and  Redfield's  The  Law  of  Negli- 
gence, Fifth  Edition,  Sec.  180.  In  Priestley  vs.  Fowler,  3  Meeson 
and  Welsby  1  (England,  1837)  Lord  Abinger,  at  pp.  5  and  6,  sug- 
gested the  doctrine  of  co-service  though  his  decision  need  not  have 
turned  upon  it.  The  fellow-servant  rule,  as  a  corollary  of  the  serv- 
ant's assumption  of  risk,  was  first  explicitly  laid  down  in  Murray 


228  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

vs.  South  Carolina  Railroad  Company,  1  McMullan  385  (South 
Carolina,  1841).  The  alleged  reasons  for  the  rule  were  cogently  set 
forth,  and,  indeed,  largely  invented,  by  Chief  Justice  Shaw  in  Far- 
well  vs.  Boston  and  Worcester  Railroad  Corporation,  4  Metcalf  49 
(Massachusetts,  1842).  The  doctrine  was  cited  in  New  York  in 
1844,  in  Brown  vs.  Maxwell  6  Hill  592,  and  was  adopted  without 
argument  in  Coon  vs.  Utica  and  Syracuse  Railroad  Company,  6 
Barbour  231  (New  York,  1849).  The  precise  point  was  settled  in 
England  in  1850  by  Hutchinson  vs.  York,  Newcastle  and  Berwick 
Railway  Company,  5  Exchequer  343.  Co-service  was  established  in 
Pennsylvania  in  1854,  in  Ryan  vs.  Cumberland  Valley  Railroad  Com- 
pany, 23  Pennsylvania  State  384 ;  in  Ohio  in  1854,  in  Cleveland,  Col- 
umbus &  Cincinnati  Railroad  Company  vs.  Keary,  3  Ohio  204 ;  and  in 
Iowa  in  1860  by  Sullivan  vs.  Mississippi  and  Missouri  Railroad 
Company,  11  Iowa  421.  The  doctrine  was  forced  upon  Scotch  law 
by  the  decision  of  the  House  of  Lords  in  Bartonshill  Coal  Company 
vs.  Reid,  3  Macqueen,  House  of  Lords,  266  (1858),  reversing  the 
unanimous  opinion  of  the  fifteen  judges  of  Scotland. 

175  "We  do  not,  however,  mean  to  discuss  the  reasons  for  the 
principle  stated.  Its  wisdom  has  been  recognized  and  sustained  by 
luminous  arguments  in  Massachusetts,  South  Carolina,  New  York, 
Pennsylvania,  Georgia  and  Illinois,  while  in  other  States  it  is  ap- 
proved with  certain  limitations  and  restrictions. ' '  —  Sullivan  vs. 
Mississippi  and  Missouri  Railroad  Company,  11  Iowa  421,  424 
(1860). 

176  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11 
Iowa  421,  423  (1860) .    Other  statements  are : 

' '  The  principal  is  not  liable  to  one  agent  or  servant  for  the  injury 
which  he  may  have  sustained  in  consequence  of  the  misfeasance  or 
negligence  of  another  agent  or  servant  of  the  same  principal,  while 
engaged  in  the  same  general  business  or  employment. ' '  —  Coon  vs. 
Utica  and  Syracuse  Railroad  Company,  6  Barbour  231,  237  (New 
York,  1849). 

"Where  many  servants  are  employed  in  the  same  business,  the 
liability  to  injury  from  the  carelessness  of  their  fellows  is  but  an 
ordinary  risk,  against  which  the  law  furnishes  no  protection  but  by 
an  action  against  the  actual  wrongdoer."  —  Ryan  vs.  Cumberland 
Valley  Railway  Company,  23  Pennsylvania  384,  387  (1854). 


NOTES  AND  REFERENCES  229 

177  Such,  substantially,  was  the  effect  of  the  decision  of  the  House 
of  Lords  in  Wilson  vs.  Merry,  Law  Reports,  1  House  of  Lords,  326 
(England,  1868),  by  which  the  doctrine  of  vice  principalship  was 
overruled. 

178  Fink  vs.  Des  Moines  Ice  Company,  84  Iowa  321,  325  (1892). 

179  "The  duty  of  the  master  to  provide  the  servant  a  reasonably 
safe  place  to  work  is  absolute  and  non-delegable.  The  obligation 
cannot  be  shifted  from  the  master  to  a  fellow  servant  or  to  any 
other  third  person."  —  Winslow  vs.  Commercial  Building  Company, 
147  Iowa  238,  241  (1910)  ;  see  also,  Haworth  vs.  Seevers  Manufac- 
turing Company,  87  Iowa  765,  774  (1892)  ;  Poli  vs.  Numa  Block 
Coal  Company,  127  Northwestern  1105,  1106  (1910)  ;  Owens  vs. 
Norwood-White  Coal  Company,  133  Northwestern  716,  721  (Iowa, 
1911). 

180  Beresford  vs.  American  Coal  Company,  124  Iowa  34,  40  (1904). 

181  Brann  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
53  Iowa  595,  597  (1880).  A  brakeman  and  a  car  inspector  were 
not  co-employees  in  respect  of  the  latter 's  failure  to  discover  a  de- 
fective hand-hold  on  a  freight  car,  inspection  of  appliances  being 
a  non-delegable  duty  of  the  employer. 

182  Beresford  vs.  American  Coal  Company,  124  Iowa  34,  40 
(1904)  ;  Cubbage  vs.  Youngerman,  134  Northwestern  1074  (Iowa, 
1912). 

183  Hendrickson  vs.  United  States  Gypsum  Company,  133  Iowa 
89,  93  (1907)  ;  Hamm  vs.  Bettendorf  Axle  Company,  147  Iowa  681, 
693  (1910). 

When  the  prosecution  of  the  work  in  which  an  employee  is  en- 
gaged involves  the  use  of  dangerous  explosives,  the  duty  of  giving 
adequate  and  timely  warning  cannot  be  delegated  so  as  to  relieve 
the  master  of  responsibility  for  the  actual  giving  of  such  warning.  — 
Neal  vs.  Sheffield  Brick  and  Tile  Company,  151  Iowa  690,  694 
(1911). 

184  Schminkey  vs.  Sinclair  &  Company,  114  Northwestern  612 
(1908)  ;  Fredericks  vs.  Fort  Dodge  Brick  and  Tile  Company,  131 
Northwestern  766,  768  (1911). 


230  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

185  See  an  enumeration  of  non-delegable  duties  in  Beresford  vs. 
American  Coal  Company,  124  Iowa  34,  42  (1904). 

186  Blazenic  vs.  Iowa  and  Wisconsin  Coal  Company,  102  Iowa  706, 
711  (1897). 

is?  jn  winslow  vs.  Commercial  Building  Company,  147  Iowa  238 
(1910),  the  owner  of  a  building  was  held  liable  to  an  employee  in- 
jured through  the  faulty  construction  of  a  fire  escape  which  had 
been  erected  by  an  independent  contractor.  Said  Mr.  Justice 
Weaver,  speaking  for  the  court : ' '  In  the  case  of  an  independent  con- 
tractor, he  is  himself  the  employer  and  has  his  own  servants  who 
look  to  him  for  the  safety  of  their  place  of  work,  and  he  alone  is 
liable  to  his  servant  or  other  person  who  is  injured  in  the  execution 
of  his  contract.  .  .  .  But,  when  the  contract  was  performed 
and  the  completed  work  accepted  by  the  defendant,  the  relation  of 
owner  and  independent  contractor  was  dissolved,  and  thereafter 
could  in  no  manner  affect  the  obligation  of  such  owner  as  an  em- 
ployer of  labor  in  and  about  the  structure  thus  erected"  (241, 
242). 

188  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11 
Iowa  421,  424  (1860). 

189  Hoben  vs.  Burlington  and  Missouri  River  Railroad  Company, 
20  Iowa  562  (1866). 

190  Beresford  vs.  American  Coal  Company,  124  Iowa  34  (1904). 

191  Peterson  vs.  Whitebreast  Coal  and  Mining  Company,  50  Iowa 
673  (1879)  ;  Hathaway  vs.  City  of  Des  Moines,  97  Iowa  333  (1896)  ; 
Foley  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  64 
Iowa  644  (1884). 

192  Hathaway  vs.  City  of  Des  Moines,  97  Iowa  333  (1896)  ;  com- 
pare Hardy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 127  Northwestern  1093  (Iowa,  1910). 

193  Baldwin  vs.  St.  Louis,  Keokuk  and  Northwestern  Railway  Com- 
pany, 75  Iowa  297  (1888)  ;  Foley  vs.  Chicago,  Rock  Island  and  Pa- 
cific Railway  Company,  64  Iowa  644  (1884).  In  Hardy  vs.  Chicago, 
Rock  Island  and  Pacific  Railway  Company,  127  Northwestern  1093, 
( 1910 ) ,  Mr.  Justice  Ladd  remarked  (p.  1095 )  of  the  foreman :    "He 


NOTES  AND  REFERENCES  231 

was  superintendent  of  the  work  in  excavating  and  removing  the  em- 
bankment. He  hired  and  discharged  employes  engaged  thereat, 
and,  though  he  sometimes  operated  the  crane  to  which  the  shovel 
was  attached  and  at  others  acted  as  engineer,  he  at  all  times  exer- 
cised entire  control.  Manifestly  he  was  vice  principal  with  refer- 
ence to  the  work  being  done".  But  see  other  extracts  from  the  same 
opinion  in  note  210. 

Where  a  superior  is  invested  with  the  charge  of  a  particular  piece 
of  work,  though  not  of  a  department,  with  full  power  to  employ  and 
discharge  men  working  therein,  then  he  is  to  be  regarded  as  a  vice- 
principal.  —  Baldwin  vs.  St.  Louis,  Keokuk  and  Northwestern  Rail- 
way Company,  75  Iowa  297  (1885). 

194  Hamm  vs.  Bettendorf  Axle  Company,  147  Iowa  681,  693 
(1910). 

195  Blazenic  vs.  Iowa  and  Wisconsin  Coal  Company,  102  Iowa  706 
(1897)  ;  Beresford  vs.  American  Coal  Company,  124  Iowa  34 
(1904)  ;  McQueeny  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway 
Company,  120  Iowa  522  (1903)  ;  Vohs  vs.  Shorthill,  130  Iowa  538 
(1906). 

196  Newbury  vs.  Getchel  and  Martin  Company,  100  Iowa  441 
(1896)  ;  McQueeny  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway 
Company,  120  Iowa  522  (1903)  ;  Collingwood  vs.  Illinois  and  Iowa 
Fuel  Company,  125  Iowa  537  (1904)  ;  and  Vohs  vs.  Shorthill,  130 
Iowa  538  (1906). 

In  Forney  vs.  Mardis  Company,  136  Northwestern  895  (Iowa, 
1912),  the  Court,  through  Mr.  Justice  Sherwin,  remarked  (at  p. 
896)  :  "But  if  an  injury  has  resulted  from  the  negligent  perform- 
ance of  an  act,  which  it  was  no  part  of  the  duty  of  the  master  to 
perform,  and  in  the  doing  of  which  no  duty  of  the  master  was  being 
performed,  then  the  person  through  whose  negligence  the  injury 
has  resulted,  whatever  may  be  his  authority,  is  not,  as  to  that  act, 
the  representative  of  the  master,  and  the  master  is  not  liable  there- 
for." 

197Labatt  in  his  Employer's  Liability,  Vol.  II,  p.  1588,  regarded 
the  question  as  still  unsettled  in  1902.  But  the  statement  in  the  text 
appears  to  be  justified  by  the  decisions  in  Beresford  vs.  American 
Coal  and  Fuel  Company,  124  Iowa  34  (1904)  ;  Collingwood  vs.  Mi- 


232  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

nois  and  Iowa  Fuel  Company,  125  Iowa  537  (1904)  ;  Vohs  vs.  Short- 
hill,  130  Iowa  538  (1906)  ;  Hamm  vs.  Bettendorf  Axle  Company,  147 
Iowa  681  (1910)  ;  Peterson  vs.  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  149  Iowa  496  (1910)  ;  Forney  vs.  Mardis  Com- 
pany, 136  Northwestern  895  (Iowa,  1912). 

198  Peterson  vs.  Whitebreast  Coal  and  Mining  Company,  50  Iowa 
673  (1879)  ;  Hathaway  vs.  Illinois  Central  Railway  Company,  92 
Iowa  337  (1894). 

199  Peterson  vs.  Whitebreast  Coal  and  Mining  Company,  50  Iowa 
673  (1879)  ;  Baldwin  vs.  St.  Louis,  Keokuk  and  Northern  Railway 
Company,  68  Iowa  37,  41-43  (1885). 

200  Foley  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
64  Iowa  644  (1884). 

201  Benn  vs.  Null,  65  Iowa  407  (1884). 

202  Hathaway  vs.  Illinois  Central  Railway  Company,  92  Iowa  337 
(1894). 

203  Hoben  vs.  Burlington  and  Missouri  River  Railroad  Company, 
20  Iowa  562  (1866). 

204  Beresford  vs.  American  Coal  Company,  124  Iowa  34  (1904)  ; 
Poli  vs.  Numa  Block  Coal  Company,  127  Northwestern  1105,  1106 
(Iowa,  1910). 

205  Collingwood  vs.  Illinois  and  Iowa  Fuel  Company,  125  Iowa 
537  (1904). 

206  Baldwin  vs.  St.  Louis,  Keokuk  and  Northern  Railway  Com- 
pany, 68  Iowa  37  (1885). 

207  Cooper  vs.  Central  Railroad  of  Iowa,  44  Iowa  134  (1876). 

208  Struble  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  128  Iowa  158  (1905). 

209  p0ij  vs  Numa  Block  Coal  Company,  127  Northwestern  1105, 
1106  (Iowa,  1910).  The  pit  "boss  in  immediate  charge  and  control 
of  the  men  and  of  the  work  as  well  as  of  the  place  is  the  one  to  whom 
they  naturally  and  properly  look  as  the  representative  of  the  cor- 
poration". Accordingly,  it  was  held  that  the  company  was  bound 
by  the  promise  of  the  mine  foreman  to  repair  a  defective  cage  hood. 


NOTES  AND  REFERENCES  233 

A  person  exercising  the  duties  delegated  to  him  by  the  master  in 
his  absence  is  a  temporary  vice  principal,  and  notice  of  defects  to 
either  is  notice  to  the  master.  —  Baldwin  vs.  St.  Louis,  Keokuk  and 
Northwestern  Railway  Company,  75  Iowa  297,  299,  300  (1888). 

210  Hardy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
127  Northwestern  1093  (Iowa,  1910).  Plaintiff  had,  under  the  in- 
structions of  the  general  foreman,  poured  powder  into  a  hole  that 
had  recently  been  "sprung"  and  was  injured  by  the  resultant  ex- 
plosion. The  court,  through  Mr.  Justice  Ladd,  remarked :  ' '  Ne- 
smith  [the  foreman]  knew  that  the  hole  had  just  been  sprung,  and, 
as  representative  of  the  defendant,  was  charged  with  knowledge  of 
the  dangers,  latent  as  well  as  patent,  ordinarily  accompanying  the 
business  which  was  being  done.  ...  As  the  order  in  effect 
assigned  the  plaintiff  a  dangerous  place  at  which  to  work,  it  was 
masterial  in  character,  and  not  merely  that  of  a  fellow  servant.  .  .  . 
Not  every  direction  with  reference  to  the  progress  of  the  work  even 
when  given  by  a  superior  servant  is  to  be  regarded  as  coming  from 
the  master.  .  .  .  But  where  the  effect  of  the  peremptory  order 
of  a  person  in  complete  control  ....  is  to  place  the  employe 
in  a  place  of  great  peril  in  which  to  perform  his  duties,  the  decisions 
are  conclusive  that  the  principal  will  be  held  responsible  for  the  act 
as  nondelegable "  (p.  1095). 

211  Frandsen  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 36  Iowa  372  (1873).  Section  hand  remained  on  hand  car  by 
order  of  the  foreman,  though  he  knew  that  a  passenger  train  for 
which  the  section  crew  were  to  yield  the  track  was  overdue. 

Strong  vs.  Iowa  Central  Railway  Company,  94  Iowa  380  (1895). 
Brakeman  stood  on  the  locomotive  pilot  to  make  a  coupling  by  the 
order  of  the  engineer. 

212  Such,  evidently,  is  the  significance  attached  to  this  power  in 
the  recent  case  of  Hardy  vs.  Chicago,  Rock  Island  and  Pacific  Rail- 
way Company,  127  Northwestern  1093  (Iowa,  1910).  Compare  the 
passages  quoted  in  note  210. 

213  Donaldson  vs.  Mississippi  and  Missouri  Railroad  Company,  18 
Iowa  280,  286  (1865).  Plaintiff,  a  sub-contractor,  while  loading 
timbers  on  defendant 's  cars,  was  injured  by  the  negligence  of  train- 
men.    The  court,  in  upholding  his  right  to  recover,  remarked : 


234  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

"His  duties  were  so  entirely  in  another  department,  and  wholly 
disconnected  with  operating  the  road,  as  that  his  relation  to  the 
employees  managing  the  train  which  ran  over  him  cannot  be,  in  any 
proper  sense,  said  to  be  that  of  a  co-servant. ' ' 

The  fact  seems  to  be  that  the  plaintiff  in  this  case  was  not  prop- 
erly an  employee  at  all,  his  rights  being  rather  those  of  a  stranger. 

214  Brann  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 53  Iowa  595  (1880).  A  brakeman  was  held  not  to  be  co-ser- 
vant of  a  car  inspector  through  whose  negligence  he  was  injured. 
Said  the  court  (p.  597)  :  "The  brakemen  on  freight  trains  and 
such  inspector  cannot  be  regarded  as  co-employes,  in  such  sense 
as  to  prevent  the  former  from  recovering  of  the  corporation  because 
of  the  negligence  of  the  latter. ' ' 

But  the  real  ground  of  this  rule  is  rather  the  doctrine  of  non- 
delegable duties  than  the  departmental  doctrine.    See  note  181. 

215Theleman  vs.  Moeller,  73  Iowa  108,  109  (1887).  "This  [fel- 
low-servant] rule  does  not  extend  to  an  employee  who  is  charged 
with  no  other  duty  than  to  inspect  the  machinery,  in  the  operation 
of  which  the  injury  occurs."  But  this  dictum  appears  to  be  only 
another  way  of  stating  that  the  master's  duty  of  inspection  is  non- 
delegable. In  the  instant  case  it  was  held  that  a  saw  operator  and 
an  engineer  whose  duties  included  inspection  and  repair  of  the  saw 
as  well  as  the  operation  of  the  engine  were  co-employees. 

216  pyne  VSm  Chicago,  Burlington  and  Quincy  Railway  Company, 
54  Iowa  223,  225  (1880).  The  court  remarked  that  "the  fact  that 
one  [employee]  was  a  detective  and  the  other  a  trainman  .... 
can  make  no  difference  in  the  rights  of  the  parties. ' ' 

So  in  Trcka  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  100  Iowa  205,  207  (1896),  the  court  held  that  the  fact 
that  one  of  the  servants  is  not  subject  to  the  immediate  supervision 
of  the  foreman  who  has  control  of  the  other  is  immaterial  in  de- 
termining whether  such  servants  are  fellow-servants. 

217  Trcka  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  100  Iowa  205  (1896).  In  Kimmerle  vs.  Dubuque  Altar 
Manufacturing  Company,  134  Northwestern  434,  435  (Iowa,  1912) 
it  was  held  that  the  operative  of  a  "shaping"  machine  and  a 
' '  gluer ' '  who  put  together  pieces  of  wood  to  be  used  on  the  machine 


NOTES  AND  REFERENCES  235 

were  co-servants  in  such  sense  that  their  common  employer  was  qo1 
answerable  to  the  former  for  the  negligence  of  the  latter. 

218  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11 
Iowa  421,  424  (1860). 

219  Manning  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  64  Iowa  240  (1884). 

220  Troughear  vs.  Lower  Vein  Coal  Company,  62  Iowa  576  (1883). 

221  pyne  vs.  Chicago,  Burlington  and  Quincy  Railway  Company, 
54  Iowa  223  (1880). 

222  See  Huggard  vs.  Sugar  Refining  Company,  132  Iowa  724,  738 
(1907).  "If  the  master  is  negligent  in  failing  to  furnish  a  safe 
place  to  work,  he  will  not  be  relieved  from  liability  for  injury  to  an 
employee,  by  showing  that  the  act  of  a  co-employee  concurred  with 
his  negligence  in  producing  the  injury."  See  also,  Madden  vs. 
Say  lor  Coal  Company,  133  Iowa  699  (1907)  ;  Kroeger  vs.  Marsh 
Bridge  Company,  116  Northwestern  125  (Iowa,  1908)  ;  and  the 
cases  cited  in  Huggard  vs.  Sugar  Refining  Company  above. 

223  Gould  vs.  Schermer,  101  Iowa  582  (1897)  ;  Madden  vs.  Saylor 
Coal  Company,  133  Iowa  699  (1907). 

224  See  Labatt's  Employer's  Liability,  Sees.  472,  473.  Nearly  all 
the  ' '  reasons ' '  worth  mentioning  were  put  forward  by  Chief  Justice 
Shaw  in  his  famous  opinion  in  Farwell  vs.  Boston  and  Worcester 
Railroad  Corporation,  4  Metcalf  49  (Massachusetts,  1842).  His 
arguments  are  repeated,  with  only  minor  variations,  in  most  of  the 
later  decisions. 

225 ' '  In  most  of  the  cases  in  which  danger  may  be  incurred,  if  not 
in  all,  he  [the  servant]  is  just  as  likely  to  be  acquainted  with  the 
probability  and  extent  of  it  as  the  master. ' '  —  Priestley  vs.  Fowler, 
3  Meeson  and  Welsby  1,  6  (England,  1837). 

"  [Plaintiff]  knew  that  the  employment  in  which  he  was  engaged 
was  perilous,  and  that  its  success  was  dependent  on  the  common  ef- 
forts of  all  the  hands ;  and  with  proper  diligence  and  prudence,  he 
might  have  been  as  well,  and  it  does  not  follow  that  he  might  not 
have  been  better  informed  than  the  defendants,  about  the  fitness 
and  security  of  all  the  appointments  connected  with  the  train. ' '  — 


236  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Murray  vs.  South  Carolina  Railroad  Company,  1  McMullan  385, 
402  (South  Carolina,  1841). 

"These  are  perils  which  the  servant  is  as  likely  to  know  and 
against  which  he  can  as  effectually  guard,  as  the  master. ' '  —  Farwell 
vs.  The  Boston  and  Worcester  Railroad  Corporation,  4  Metcalf  49, 
57  (Massachusetts,  1842). 

' '  Like  the  main  rule,  this  exception  is  founded  upon  public  policy, 
and  had  its  origin  in  the  idea  that  the  employee  has  the  means  of 
knowing  just  as  well  as  the  employer  all  the  ordinary  risks  incident 
to  the  service  in  which  he  is  about  to  engage,  and  that  these,  includ- 
ing the  perils  that  might  arise  from  the  negligence  of  other  serv- 
ants in  the  same  business,  entered  into  the  contemplation  of  the 
parties  in  making  the  contract ;  on  account  of  which,  the  law  implies, 
the  servant  or  employee  has  insisted  upon  a  rate  of  compensation 
which  would  indemnify  him  for  the  hazards  of  the  employment. ' '  — 
Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11  Iowa 
421,  423,  424  (1860). 

See  also  Chicago  and  Great  Eastern  vs.  Harney,  28  Indiana  28 
(1867)  ;  Michigan  Central  Railway  Company  vs.  Leahey,  10  Michi- 
gan 193  (1862). 

226  ( t  rpkg  genera|  rule,  resulting  from  considerations  as  well  of 
justice  as  of  policy,  is,  that  he  who  engages  in  the  employment  of 
another  for  the  performance  of  specified  duties  and  services  for  com- 
pensation, takes  upon  himself  the  natural  and  ordinary  risks  and 
perils  incident  to  the  performance  of  such  services,  and  in  legal  pre- 
sumption, the  compensation  is  adjusted  accordingly.  And  we  are 
not  aware  of  any  principle  which  should  except  the  perils  arising 
from  the  carelessness  and  negligence  of  those  who  are  in  the  same 
employment.  These  are  perils  which  the  servant  is  as  likely  to  know 
and  against  which  he  can  as  effectually  guard,  as  the  master.  They 
are  perils  incident  to  the  service,  and  which  can  be  as  distinctly 
foreseen  and  provided  for  in  the  rate  of  compensation  as  any 
other.  .  .  .  Regarding  it  in  this  light,  it  is  the  ordinary  case  of 
one  sustaining  an  injury  in  the  course  of  his  own  employment,  in 
which  he  must  bear  the  loss  himself,  or  seek  his  remedy,  if  he  have 
any,  against  the  actual  wrong-doer."  —  Farwell  vs.  Boston  and 
Worcester  Railroad  Corporation,  4  Metcalf  49,  57,  59  (Massachu- 
setts, 1842). 


NOTES  AND  REFERENCES  237 

"  Where  many  servants  are  employed  in  the  same  business,  the 
liability  to  injury  from  the  carelessness  of  their  fellows  is  but  an 
ordinary  risk,  against  which  the  law  furnishes  no  protection  but  by 
action  against  the  actual  wrong-doer. ' '  —  Ryan  vs.  Cumberland 
Valley  Railway  Company,  23  Pennsylvania  384,  387  (1854). 

"When  several  workmen  engage  to  serve  a  master  in  a  common 
work,  they  know,  or  ought  to  know,  the  risks  to  which  they  are  ex- 
posing themselves,  including  the  risks  of  carelessness,  against  which 
their  employer  cannot  secure  them,  and  they  must  be  supposed  to 
contract  with  reference  to  such  risks. ' '  —  Bartonshill  Coal  Company 
vs.  Reid,  3  Macqueen,  House  of  Lords,  266,  295  (1858),  Opinion 
of  Lord  Cranworth. 

See  also  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company, 
11  Iowa  421,  423,  424  (1860)  ;  and  cases  collected  in  Labatt's  Emr 
ploycrs'  Liability,  p.  1310,  footnote  8. 

227 1 1  jn  £ ac^  ^Q  anow  thjs  sort  of  action  to  prevail  would  be  an 
encouragement  to  the  servant  to  omit  that  diligence  and  caution 
which  he  is  in  duty  bound  to  exercise  on  the  behalf  of  his  master, 
to  protect  him  against  the  misconduct  or  negligence  of  others  who 
serve  him,  and  which  diligence  and  caution,  while  they  protect  the 
master,  are  much  better  security  against  any  injury  the  servant  may 
sustain  by  the  negligence  of  others  engaged  under  the  same  master, 
than  any  recourse  against  his  master  for  damages  could  possibly 
afford."  —  Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1,  7  (Eng- 
land, 1837). 

"Where  several  persons  are  employed  in  the  conduct  of  one  com- 
mon enterprise  or  undertaking,  and  the  safety  of  each  depends  much 
on  the  care  and  skill  with  which  each  other  shall  perform  his  appro- 
priate duty,  each  is  an  observer  of  the  conduct  of  the  others,  can 
give  notice  of  any  misconduct,  incapacity  or  neglect  of  duty,  and 
leave  the  service,  if  the  common  employer  will  not  take  such  pre- 
cautions, and  employ  such  agents,  as  the  safety  of  the  whole  party 
may  require.  By  these  means,  the  safety  of  each  will  be  much  more 
effectually  secured,  than  could  be  done  by  a  resort  to  the  common 
employer  for  indemnity  in  case  of  loss  by  the  negligence  of  each 
other."  —  Farwell  vs.  Boston  and  Worcester  Railroad  Corpora- 
tion, 4  Metcalf  49,  59  (Massachusetts,  1842). 

"And  again,  the  law  supposes  that  the  relation  which  the  several 


238  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

employees  sustain  to  each  other,  and  the  business  in  which  they  are 
engaged,  would  enable  them  better  to  guard  against  such  risks  and 
accidents,  than  could  the  employer.  Besides,  the  moral  effect  of  de- 
volving these  risks  upon  the  employees  themselves  would  be  to  in- 
duce a  greater  degree  of  caution,  prudence  and  fidelity  than  would 
in  all  probability  be  otherwise  exercised  by  them. ' '  —  Sullivan  vs. 
Mississippi  and  Missouri  Railroad  Company,  11  Iowa  421,  424 
(1860). 

"As  the  effects  of  the  carelessness  of  one  servant  may  frequently 
be  obviated  by  the  watchfulness  of  another,  public  policy  requires 
the  adoption  of  the  rule  as  an  incentive  to  superior  vigilence '  \  — 
Russell  vs.  Hudson  River  Railroad  Company,  17  New  York  134 
(1858). 

See  also  Burke  vs.  Norwich  and  Worcester  Railroad  Company, 
34  Connecticut  474  (1867),  Norfolk  and  Western  Railway  Company 
vs.  Nuckols,  91  Virginia  193  (1895),  and  cases  cited  in  Labatt's 
Employers'  Liability,  p.  1318,  footnote  12. 

228  "Into  it  [the  contract  of  service]  was  bodily  read — because 
commercial  necessity  required  it  —  an  implied  stipulation  that  the 
servant  should  assume  the  risks  of  the  negligent  acts  of  those  fel- 
low servants  with  whom  he  might  expect  to  be  associated,  upon 
whose  care  his  safety  might  be  expected  to  depend."  —  Bohlen's 
Voluntary  Assumption  of  Risk  in  the  Harvard  Law  Review,  Vol. 
XX,  p.  31. 

' '  If  the  servants  who  do  this  work  almost  exclusively  were  under 
no  obligation  to  save  each  other's  lives,  and  could  throw  all  the 
risks  of  their  dangerous  employment  upon  the  companies  who  em- 
ploy them,  all  these  great  enterprises  which  require  and  employ  the 
services  of  a  large  number  of  men  would  be  seriously  retarded. ' '  — 
Schaub  vs.  Hannibal  and  St.  Joseph  Railway  Company,  106  Mis- 
souri 74,  91  (1891). 

See  also  Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1,  5  (Eng- 
land, 1837)  ;  and  Farwell  vs.  Boston  and  Worcester  Railroad  Cor- 
poration, 4  Metcalf  49  (Massachusetts,  1842). 

229  See  Labatt's  Employers'  Liability,  Sees.  474,  475. 

230  Domestic  service  was  the  type  of  industry  chosen  by  Lord 
Abinger  to  illustrate  "the  inconvenience  and  absurdity"  of  holding 


NOTES  AND  REFERENCES  239 

a  master  liable  to  one  servant  for  the  negligence  of  another.  — 
Priestley  vs.  Fowler,  3  Meeson  and  Welsby  1,  5,  6  (England,  1837). 
Had  the  learned  and  antiquated  Lord  drawn  his  analogies  from  the 
factories  or  steam  railways  then  flourishing  all  about  him,  his  argu- 
ments might  have  seemed  less  conclusive  even  to  himself. 

231  Speech  of  Mr.  Birrell  in  the  House  of  Commons,  May  17,  1897, 
Hansard,  1897,  Vol.  XLIX  (4th  series),  p.  692. 

232  Farwell  vs.  Boston  and  Worcester  Railroad  Corporation,  4 
Met  calf  49  (Massachusetts,  1842). 

233  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11 
Iowa  421  (1860). 

234  Farwell  vs.  Boston  and  Worcester  Railroad  Corporation,  4 
Metcalf  49,  57  (Massachusetts,  1842). 

235  Warner's  Employers'  Liability  as  an  Industrial  Problem  in 
The  Green  Bag,  Vol.  XVIII,  pp.  185,  187. 

236  This  comparison  is  made  by  Shearman  and  Redfield  in  The 
Law  of  Negligence,  Fifth  Edition,  p.  266.  For  Chief  Justice  Ruf- 
fin's  views  on  the  humanity  of  slave  beating  see  State  vs.  Mann,  2 
Devereux263  (North  Carolina,  1829). 

237  "With  respect  to  considerations  of  policy  it  is  by  no  means 
certain  that  the  public  interest  would  not  be  best  subserved  by 
holding  the  superior,  with  his  higher  intelligence,  his  surer  means  of 
information,  and  his  power  of  selecting,  directing,  and  discharging 
subordinates,  to  the  strictest  accountability  for  their  misconduct  in 
his  service,  whoever  may  be  the  sufferer  from  it. "  —  Burke  vs.  Nor- 
wich and  Worcester  Railway  Company,  34  Connecticut  474,  480 
(1867). 

238  Compare  Lewis's  State  Insurance,  p.  90. 

239  Jhering's  Scherz  und  Ernst  in  der  Jurisprudenz,  Ninth  Edi- 
tion, pp.  418,  429. 

240 <  <  rpne  defense  0f  common  employment  has  little  of  reason  or 
principle  to  support  it,  and  the  tendency  in  nearly  all  jurisdictions 
is  to  limit  rather  than  enlarge  its  range.  It  must  be  conceded  that 
it  cannot  rest  on  reasons  drawn  from  considerations  of  justice  or  of 


240  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

public  policy. ' '  —  Ziegler  vs.  Danbury  and  Norwich  Railway  Com- 
pany, 52  Connecticut  543,  556  (1885). 

See  also  Labatt's  Employers'  Liability,  Sec.  475. 

241  Hansard,  1897,  Vol.  XLIX,  p.  692. 

242  Quoted  from  Warner's  Employers'  Liability  as  an  Industrial 
Problem  in  The  Green  Bag,  Vol.  XVIII,  pp.  185,  187. 

243  See  Ziegler  vs.  Danbury  and  Norwich  Railway  Company,  52 
Connecticut  543  (1885)  ;  Parker  vs.  Hannibal  and  St.  Joseph  Rail- 
way Company,  109  Missouri  362,  409  (1891)  ;  Burke  vs.  Norwich 
and  Worcester  Railway  Company,  34  Connecticut  474  (1867)  ;  Dris- 
coll  vs.  Allis  Chalmers,  129  Northwestern  401  (Wisconsin,  1911), 
remarks  of  Chief  Justice  Winslow  at  p.  408. 

24*  See  Driscoll  vs.  Allis  Chalmers,  129  Northwestern  401  (Wis- 
consin, 1911),  remarks  of  Chief  Justice  Winslow  at  p.  408;  Louis- 
ville and  Nashville  Railway  Company  vs.  Melton,  218  United  States 
36  (1910)  ;  Mobile,  Jackson  and  Kansas  City  Railway  Company  vs. 
Turnipseed,  219  United  States  35  (1910)  ;  Chicago,  Burlington  and 
Quincy  Railway  Company  .vs.  McGuire,  31  Supreme  Court  Re- 
porter 259  (1911)  ;  Vindicator  Consolidated  Gold  Mining  Company 
vs.  Firstbrook,  36  Colorado  498  (1906)  ;  Judd  vs.  Letts,  158  Cali- 
fornia 359  (1910)  ;  Dryburg  vs.  Mercur  Gold  Mining  and  Milling 
Company,  55  Pacific  367  (Utah,  1898). 

245  rpj^  fenow.servant  rule  has  been  abrogated  as  to  all  employ- 
ments, absolutely  by  Colorado,  and  contingently  upon  acceptance  of 
workmen's  compensation  or  industrial  insurance  acts  by:  Cali- 
fornia, Illinois,  Kansas,  Massachusetts,  Michigan,  New  Jersey,  Ohio, 
and  Wisconsin.  In  Arizona,  Nevada,  and  Washington  the  common 
law  is  superseded  as  to  hazardous  employments. 

246  The  fellow-servant  rule  is  abrogated  or  modified  as  to  railways 
in:  Alabama,  Arkansas,  Colorado,  Florida,  Georgia,  Indiana,  Kan- 
sas, Michigan,  Minnesota,  Mississippi,  Missouri,  Nebraska,  Nevada, 
New  Jersey,  New  York,  North  Carolina,  North  Dakota,  Ohio,  Okla- 
homa, Oregon,  South  Carolina,  and  Texas;  as  to  all  corporations  in 
Arizona,  as  to  mines  in  Maryland  (coal  mines),  Missouri,  Montana, 
and  Nevada  (and  mills).  —  See  Twenty-second  Annual  Report  of 


NOTES  AND  REFERENCES  241 

the  United  States  Bureau  of  Labor;  and  Bulletin  of  Ihc  United 
States  Bureau  of  Labor,  Nos.  85  ct  seq. 

247  Laws  of  Iowa,  1862,  p.  198. 

248  Laws  of  Iowa,  1870,  p.  161. 

249  Laws  of  Iowa  (Public),  1872,  p.  70. 

250  Code  of  1873,  See.  1307. 

251  Code  of  1873,  Sec.  1278 ;  Code  of  1897,  Sec.  2039. 

252  Bower  vs.  Burlington  and  Southwestern  Railway  Company,  42 
Iowa  546  (1876).    The  lessor  is  also  liable. 

253  Sloan  vs.  Central  Iowa  Railway  Company,  62  Iowa  728  (1883). 
Liability  attaches  not  to  the  receiver  personally  but  to  the  property 
in  his  hands. 

254  McKnight  vs.  Iowa  and  Minnesota  Railway  Construction  Com- 
pany, 43  Iowa  406  (1876)  ;  Mace  vs.  Boedker  and  Company,  127 
Iowa  721  (1905). 

255McLeod  vs.  Sioux  City  Traction  Company,  125  Iowa  270 
(1904). 

256  Laws  of  Iowa,  1902,  p.  49. 

257  Constitution  of  Iowa,  1857,  Art.  Ill,  Sec.  29. 

258  McAunich  vs.  Mississippi  and  Missouri  Railroad  Company,  20 
Iowa  338,  342  (1866). 

259  Constitution  of  Iowa,  1857,  Art.  I,  Sec.  6. 

260  McAunich  vs.  Mississippi  and  Missouri  Railroad  Company,  20 
Iowa  338,  343,  344  (1866). 

261  Bucklew  vs.  Central  Iowa  Railway  Company,  64  Iowa  603 

(1884). 

262  McAunich  vs.  Mississippi  and  Missouri  Railroad  Company,  20 
Iowa  338  (1866)  ;  Deppe  vs.  Chicago,  Rock  Island  and  Pacific  Rail- 
way Company,  36  Iowa  52  (1872). 

263  Deppe  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 36  Iowa  52,  56  (1872). 


242  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

204  Minneapolis  and  St.  Louis  Railway  Company  vs.  Herrick,  127 
United  States  210  (1888). 

285  Mobile,  Jackson  and  Kansas  City  Railroad  Company  vs.  Tur- 
nipseed,  219  United  States  35  (1911)  and  cases  cited. 

268  Louisville  and  Nashville  Railway  Company  vs.  Melton,  218 
United  States  36  (1910).  Compare  Cleveland,  Cincinnati,  Chicago 
and  St.  Louis  Railway  Company  vs.  Foland,  91  Northeastern  594 
(Indiana,  1910),  by  which  the  same  statute  was  restricted  to  em- 
ployees engaged  in  train  service  to  save  it  from  repugnancy  to  the 
Fourteenth  Amendment. 

267  Louisville  and  Nashville  Railway  Company  vs.  Melton,  218 
United  States  36  (1910),  opinion  of  Mr.  Justice  White  at  p.  50. 

268  Deppe  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
36  Iowa  52  (1872)  ;  Frandsen  vs.  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  36  Iowa  372  (1873).  See  the  Court's  remarks  in 
Malone  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, 65  Iowa  417  (1884). 

269  Foley  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
64  Iowa  644,  648  (1884). 

270  Larson  vs.  Illinois  Central  Railway  Company,  91  Iowa  81,  85 
(1894)  ;  Connors  vs.  Chicago  and  Northwestern  Railway  Company, 
111  Iowa  384  (1900). 

271  Stroble  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Com- 
pany, 70  Iowa  555,  560  (1886). 

272  Handelun  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  72  Iowa  709  (1887). 

273  Nelson  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
73  Iowa  576  (1887). 

274  Butler  vs.  Chicago,  Burlington  and  Quincy  Railroad  Company, 
87  Iowa  206  (1893). 

275  Chicago,  Milwaukee  and  St.  Paul  Railway  Company  vs.  Ar- 
tery, 137  United  States  507  (1890)  ;  Larson  vs.  Illinois  Central  Rail- 
way Company,  91  Iowa  81  (1894). 


NOTES  AND  REFERENCES  243 

276  Slaats  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
129  Northwestern  63  (Iowa,  1911). 

277  Pierce  vs.  Central  Iowa  Railway  Company,  73  Iowa  140  (1887). 
The  fact  that  the  plaintiff  was  not  employed  in  the  operation  of  the 
road  held  to  be  not  material. 

278  Malone  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  65  Iowa  417  (1884)  ;  Stroble  vs.  Chicago,  Milwaukee  and 
St.  Paul  Railway  Company,  70  Iowa  555,  560  (1886).  "This  negli- 
gence, to  render  the  corporation  liable,  must  be  of  an  employe,  and 
affect  a  co-employe,  who  are  in  some  manner  performing  work  for 
the  purpose  of  moving  a  train". 

279  Pyne  vs.  Chicago,  Burlington  and  Quincy  Railway  Company, 
54  Iowa  223  (1880)  ;  Handelun  vs.  Burlington,  Cedar  Rapids  and 
Northern  Railway  Company,  72  Iowa  709  (1887)  ;  Butler  vs.  Chica- 
go, Burlington  and  Quincy  Railroad  Company,  87  Iowa  206  (1893)  ; 
Canon  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  101 
Iowa  613  (1897)  ;  Akeson  vs.  Chicago,  Burlington  and  Quincy  Rail- 
way Company,  106  Iowa  54  (1898).  Hughes  vs.  Iowa  Central  Rail- 
way Company,  128  Iowa  207  (1905). 

280  Akeson  vs.  Chicago,  Burlington  and  Quincy  Railway  Company, 
106  Iowa  54,  62  (1898). 

281  See  Labatt's  Employers'  Liability,  Vol.  II,  p.  2114,  and  cases 
cited. 

282  Deppe  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 36  Iowa  52  (1872). 

283  Nelson  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Com- 
pany, 73  Iowa  576  (1887). 

284  Handelun  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  72  Iowa  709  (1887). 

285  Smith  vs.  Humeston  and  Shenandoah  Railway  Company,  78 
Iowa  583  (1889). 

286  Akeson  vs.  Chicago,  Burlington  and  Quincy  Railway  Com- 
pany, 106  Iowa  54  (1898). 


244  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

287  Butler  vs.  Chicago,  Burlington  and  Quincy  Railway  Company, 
87  Iowa  206  (1893). 

288  Malone  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  65  Iowa  417  (1884). 

289  Canon  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
101  Iowa  613  (1897). 

290  jjUghes  vs,  Iowa  Central  Railway  Company,  128  Iowa  207 
(1905). 

291  Jensen  vs.  Omaha  and  St.  Louis  Railway  Company,  115  Iowa 
404  (1902). 

292  pierce  VSt  Central  Iowa  Railway  Company,  73  Iowa  140 
(1887).  Plaintiff  was  upon  a  ladder  leaning  against  the  car  and 
was  injured  by  the  negligent  starting  of  the  train. 

293  pyne  vs%  Chicago,  Burlington  and  Quincy  Railway  Company, 
54  Iowa  223  (1880).  A  detective  prostrated  by  a  sunstroke  and  run 
over  while  in  a  state  of  insensibility. 

294  Keatley  vs.  Illinois  Central  Railway  Company,  94  Iowa  685 
(1895).  Employee  injured  by  the  negligent  running  of  a  train  at 
dangerous  speed  across  an  unfinished  bridge. 

295  Haden  vs.  Sioux  City  and  Pacific  Railway  Company,  92  Iowa 
226  (1894).  Section  foreman  stepped  upon  the  track  after  the  first 
section  of  a  train  had  passed  and  was  struck  by  the  second  section, 
the  approach  of  which  he  had  no  reason  to  expect. 

296  Larson  vs.  Illinois  Central  Railway  Company,  91  Iowa  81 
(1894).    Collision  with  another  hand  car. 

In  Chicago,  Milwaukee  and  St.  Paul  Railway  Company  vs.  Ar- 
tery, 137  United  States  507  (1890)  it  was  said:  "The  railway  was 
being  used  and  operated  in  the  movement  of  the  hand-car,  quite  as 
much  as  if  the  latter  had  been  a  train  of  cars  drawn  by  a  loco- 
motive" (p.  515). 

297  Potter  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
46  Iowa  399  (1877). 

298  Luce  vs.  Chicago,  St.  Paul,  Minneapolis  and  Omaha  Railway 
Company,  67  Iowa  75  (1885). 


NOTES  AND  REFERENCES  245 

-i)9  Manning  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  64  Iowa  240  (1884). 

300  Hathaway  vs.  Illinois  Central  Railway  Company,  92  Iowa  337 
(1894). 

301  Matson  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 68  Iowa  22  (1885).  Plaintiff  injured  by  heavy  stone  thrown 
by  a  member  of  the  same  gang. 

Dunn  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  130 
Iowa  580  (1906).  Plaintiff  was  struck  by  an  iron  bar  which  a  mem- 
ber of  the  same  gang  had  left  upon  the  track  and  which  was  hurled 
off  by  a  passing  train. 

302  Smith  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  59  Iowa  73  (1882). 

303  Potter  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
46  Iowa  399,  401  (1877)  ;  Schroeder  vs.  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  41  Iowa  344,  347  (1875). 

304  Hunt  vs.  Chicago  and  Northwestern  Railway  Company,  26 
Iowa  363  (1868). 

305  ]y[Urphy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 45  Iowa  661  (1877). 

306  Schroeder  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 41  Iowa  344  (1875). 

307  Hughes  vs.  Iowa  Central  Railway  Company,  128  Iowa  207 
(1905). 

308  Mumford  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 128  Iowa  685,  691,  693  (1905). 

309  Mumford  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 128  Iowa  685  (1905). 

310  See  a  replica  of  the  application  for  membership  in  the  Report 
of  the  Iowa  Bureau  of  Labor  Statistics,  1895-1896,  pp.  99,  100.  The 
pertinent  stipulations  are  set  out  in  Downey's  History  of  Labor 
Legislation  in  Iowa,  pp.  179-181. 

311  See  Report  of  the  Iowa  Bureau  of  Labor  Statistics,  1895-1896, 
pp.  94-176,  which  contains  the  hearings  on  the  Temple  Amendment 


246  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

before  the  Senate  Committee,  in  1897,  and  also  a  statement  by  the 
assistant  superintendent  of  the  Burlington  Voluntary  Relief  De- 
partment. See  also  a  summary  of  the  arguments  pro  and  con  by  Mr. 
Justice  Hughes  of  the  Supreme  Court  of  the  United  States  in  Chi- 
cago, Burlington  and  Quincy  Railway  Company  vs.  McGuire,  31 
Supreme  Court  Reporter  259,  260  (1911). 

312  Donald  vs.  Chicago,  Burlington  and  Quincy  Railway  Com- 
pany, 93  Iowa  284  (1895). 

313  Journal  of  the  House  of  Representatives,  1897,  pp.  279,  280. 

314  Journal  of  the  House  of  Representatives,  1897,  pp.  791,  792, 
809,  818,  930,  960,  968,  969 ;  Journal  of  the  Senate,  1897,  pp.  649, 
792,  793,  860,  888,  1105,  1106.  The  Temple  Amendment  affected 
Sec.  38  of  Senate  File,  No.  20,  26th  General  Assembly,  Extra  Ses- 
sion (1897). 

315  Iowa  Official  Register,  1898,  pp.  135,  138. 

3i6  rp^g  V0£e  jn  tkg  Senate  was  39  to  4;  in  the  House,  96  to  1.  — 
Journal  of  the  Senate,  1898,  p.  342 ;  Journal  of  the  House  of  Repre- 
sentatives, 1898,  p.  529. 

317  Laws  of  Iowa,  1898,  p.  33 ;  Supplement  of  1907,  Sec.  2071. 

318  McGuire  vs.  Chicago,  Burlington  and  Quincy  Railroad  Com- 
pany, 131  Iowa  340  (1906)  and  138  Iowa  664  (1908)  ;  Chicago,  Bur- 
lington and  Quincy  Railroad  Company  vs.  McGuire,  219  United 
States  549  (1911). 

319  "It  is  not  enough  to  show  that  the  defendant  was  guilty  of 
negligence,  but  it  must  appear  that  the  injured  party  was  not  also 
negligent  and  blameable.  It  is  the  duty  of  the  party  injured,  as 
well  as  of  the  party  accused  of  negligence,  to  use  all  reasonable 
means  to  foresee  and  prevent  injury ;  and  if  such  means  are  not  em- 
ployed by  the  injured  party,  there  can  be  no  recovery  for  the  in- 
jury."—  Donaldson  vs.  Mississippi  and  Missouri  Railroad  Com- 
pany, 18  Iowa  280  (1865). 

320  Cooley  on  Torts,  Third  Edition,  p.  1457 ;  Butterfield  vs.  For- 
rester, 11  East  60  (England,  1809)  ;  Wright  vs.  Illinois  and  Missis- 
sippi Telegraph  Company,  20  Iowa  195  (1866)  ;  Haley  vs.  Chicago 


NOTES  AND  REFERENCES  247 

and  Northwestern  Railway  Company,  21  Iowa  15  (1866)  ;  Sherman 
vs.  Western  Stage  Company,  24  Iowa  515  (1868). 

The  doctrine  of  contributory  negligence  is  stated  or  applied  in 
numberless  cases. 

321  The  negligence  which  will  defeat  recovery  for  a  personal  in- 
jury is  "any  want  of  ordinary  care,  however  slight,  which  as  an  effi- 
cient cause  contributes  to  the  injury. ' '  —  Cooper  vs.  Oelwein,  145 
Iowa  181,  183,  184  (1909). 

See  also  O'Keefe  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  32  Iowa  467  (1871)  ;  Rietveld  vs.  Wabash  Railroad  Com- 
pany, 129  Iowa  249  (1906)  ;  Jerolman  vs.  Chicago  Great  Western 
Railway  Company,  108  Iowa  177  (1899). 

322  Hatfield  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 61  Iowa  434  (1883)  ;  Yeager  vs.  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  135  Northwestern  638  (Iowa,  1912). 

"When  the  negligence  of  the  plaintiff  is  proximate,  and  that  of 
the  defendant  remote,  ....  no  action  can  be  sustained.  .  .  . 
On  the  other  hand,  when  the  negligence  of  the  defendant  is  proxi- 
mate, and  that  of  the  plaintiff  remote,  the  action  can  then  well  be 
sustained,  although  the  plaintiff  is  not  entirely  without  fault. ' '  — 
Haley  vs.  Chicago  and  Northwestern  Railway  Company,  21  Iowa 
15,  25  (1866). 

323  Wright  vs.  Illinois  and  Mississippi  Telegraph  Company,  20 
Iowa  195  (1866).  But  the  plaintiff  can  not  recover  for  such  en- 
hancement of  damages  as  may  be  attributable  to  his  want  of  care. 

324  "When  the  negligent  act  which  causes  an  injury  is  done  after 
the  negligence  of  the  injured  party  is  known  to  the  other  party, 
and  the  injury  could  have  been  avoided  by  the  exercise  of  reasonable 
care  on  his  part,  there  is  an  exception  to  the  general  rule,  and  the 
contributory  negligence  of  the  injured  party  will  not  defeat  a  re- 
covery."  —  Keefe  vs.  Chicago  and  Northwestern  Railway  Company, 
92  Iowa  182,  186  (1894). 

For  applications  of  the  doctrine  of  "last  clear  chance",  see  Con- 
ners  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, 87  Iowa  147  (1893)  ;  Haden  vs.  Sioux  City  and  Pacific  Rail- 
way Company,  92  Iowa  226  (1894)  ;  Wilkins  vs.  Omaha  and  Council 


248  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Bluffs  Railway  Company,  96  Iowa  668  (1896)  ;  Goodrich  vs.  Bur- 
lington, Cedar  Rapids  and  Northern  Railway  Company,  103  Iowa 
412  (1897). 

The  doctrine  applies  even  where  the  negligence  of  the  injured 
party  continued  up  to  the  time  of  the  injury,  if  the  defendant  did, 
and  the  injured  person  did  not,  become  aware  of  his  peril  in  time  to 
avoid  the  catastrophe.  —  Bruggeman  vs.  Illinois  Central  Railway 
Company,  147  Iowa  187,  205  (1910). 

It  appears  to  be  settled  in  Iowa,  that,  to  bring  a  case  within  the 
doctrine  of  "last  clear  chance",  the  defendant  must  have  had  actual 
knowledge  of  the  other's  negligence  in  time  to  avoid  the  injury. — 
Bourrett  vs.  Chicago  and  Northwestern  Railway  Company,  132 
Northwestern  973  (Iowa,  1911),  opinion  of  Chief  Justice  Sherwin 
at  p.  975 ;  Purcell  vs.  Chicago  and  Northwestern  Railway  Com- 
pany, 117  Iowa  667,  671  (1902)  ;  Keefe  vs.  Chicago  and  Northwest- 
ern Railway  Company,  92  Iowa  182,  186  (1894). 

But  Mr.  Justice  Ladd  believes  that  the  rule  is  [should  be]  that 
the  defendant  is  liable  if  he  could  have  discovered  the  plaintiff's 
peril  and  avoided  the  injury  by  the  exercise  of  ordinary  care.  —  See 
his  dissenting  opinion  in  Bourrett  vs.  Chicago  and  Northwestern 
Railway  Company,  132  Northwestern  973,  976-979  (Iowa,  1911). 

325  The  doctrine  of  ' '  last  clear  chance ' '  is  commonly  traced  to 
Lord  Abinger's  decision  in  Davies  vs.  Mann,  10  Meeson  and  Welsby 
546  (England,  1842). 

See  Schofield's  Davies  vs.  Mann:  Theory  of  Contributory  Negli- 
gence in  the  Harvard  Law  Review,  Vol.  Ill,  p.  263 ;  also  Salmond  on 
Torts,  Second  Edition,  1910,  p.  36. 

326  <  <  rp^  par^y  wno  iast  has  a  clear  opportunity  of  avoiding  the 
accident,  notwithstanding  the  negligence  of  his  opponent,  is  consid- 
ered wholly  responsible  for  it.  .  .  .  The  rule  constitutes  no  ex- 
ception to  the  general  doctrine  of  contributory  negligence  .... 
but  merely  operates  to  relieve  the  negligence  of  the  plaintiff,  which 
would  otherwise  be  regarded  as  contributory,  from  its  character  as 
such. ' '  —  Bourrett  vs.  Chicago  and  Northwestern  Railway  Com- 
pany, 132  Northwestern  973  (Iowa,  1911),  dissenting  opinion  of 
Mr.  Justice  Ladd  at  p.  977. 

In  Bruggeman  vs.  Illinois  Central  Railway  Company,  147  Iowa 


NOTES  AND  REFERENCES  249 

187  (1910),  it  appeared  that  defendant's  agents  did,  and  plaintiff 
did  not,  actually  know  of  plaintiff's  danger  in  time  to  have  avoided 
the  injury  by  the  exercise  of  ordinary  care ;  but  it  further  appeared 
that  the  plaintiff  was  negligent  in  unnecessarily  putting  himself  into 
a  place  of  danger  and  that  his  negligence  continued  to  the  very 
moment  of  the  injury.  After  holding  that  the  defendant  was  liable, 
Mr.  Justice  Deemer  went  on  to  say  (at  p.  205)  :  "If  just  before 
that  climax  only  one  party  had  the  power  to  prevent  the  catas- 
trophe, and  he  neglected  to  use  it,  the  legal  responsibility  is  his 
alone.  If,  however,  each  had  such  power,  and  each  neglected  to  use 
it,  then  their  negligence  was  concurrent,  and  neither  can  recover 
against  the  other."  "Power  to  prevent  the  catastrophe",  in  this 
passage  may  be  taken  to  mean  knowledge  and  ability  to  avoid  the 
injury  by  the  exercise  of  ordinary  care,  not  ability  to  discover  and 
avoid  the  injury  by  the  exercise  of  such  care. 

To  the  same  effect,  apparently,  is  the  decision  in  Miller  vs.  Cedar 
Rapids  Sash  and  Door  Company,  134  Northwestern  411,  415  (Iowa, 
1912),  that  concurrent  negligence  on  the  part  of  the  plaintiff,  which 
does  not  intervene  between  the  continuing  negligence  of  the  defend- 
ant and  the  injury  of  the  plaintiff,  although  but  for  such  concurrent 
negligence  the  injury  would  not  have  occurred,  is  not  a  bar  to 
recovery. 

327Labatt's  Employers'  Liability,  Ch.  XVIII. 

328  See  Labatt's  Employers'  Liability,  Sec.  309  and  note  3. 

The  present  writer  has  found  no  Iowa  decision  which  clearly  holds 
that  a  servant  was  guilty  of  contributory  negligence  in  continuing 
at  work  with  knowledge  and  appreciation  of  an  abnormal  danger. 
In  Sedgwick  vs.  Illinois  Central  Railway  Company,  76  Iowa  340 
(1888),  a  brakeman  was  trying  to  effect  an  uncoupling  when  the 
train  started  without  warning.  He  remained  between  the  car  and 
tender,  walking  backward,  until  his  foot  caught  in  a  defective  cattle 
guard  and  he  was  run  over  and  killed.  Held  that  the  brakeman 
was  guilty  of  contributory  negligence  in  not  abandoning  the  at- 
tempt to  complete  the  uncoupling  as  soon  as  the  train  started  and 
in  not  remembering  the  presence  of  the  cattle  guard  (p.  341),  and 
also  that  "when  he  voluntarily  remained  at  the  coupling,  with 
knowledge  that  the  train  was  in  motion,  he     ...     .     assumed 


250  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

all  the  risks  which  he  incurred,  including  the  dangers  of  the  cattle- 
guard. "  (p.  342).  The  court  here  appears  to  have  confused  con- 
tributory negligence  at  the  time  of  the  injury  with  assumption  of 
risk.  In  Brownfield  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  107  Iowa  254,  259  (1899)  there  is  a  similar  want  of  clear 
distinction.  But  neither  case  in  any  way  turned  upon  the  distinc- 
tion. 

The  distinction  referred  to  would  be  important,  e.  g.,  in  a  case 
where  the  master's  promise  to  repair  had  relieved  the  servant  of 
assumption  of  risk  but  where  the  danger  was  so  imminent  that  a 
prudent  man  would  not  have  encountered  it.  The  Assumption  of 
Risk  Act  of  1909  may  necessitate  a  clearer  determination  of  what 
constitutes  contributory  negligence  in  continuing  at  work. 

329  See  below,  p.  57. 

330  Rose  vs.  Des  Moines  Valley  Railway  Company,  39  Iowa  246 
(1874)  ;  Scagel  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Com- 
pany, 83  Iowa  380  (1891). 

An  employee  will  not  be  guilty  of  contributory  negligence  in  the 
exercise  of  such  reasonable  and  ordinary  care  as  a  man  of  reasonable 
caution  would  have  exercised  under  the  circumstances.  —  Greenleaf 
vs.  Dubuque  and  Sioux  City  Railroad  Company,  33  Iowa  52,  57,  58 
(1871). 

' '  One  will  not  be  guilty  of  contributory  negligence  who  has  exer- 
cised ordinary  care  to  avoid  injury. ' '  —  Hamilton  vs.  Des  Moines 
Valley  Railway  Company,  36  Iowa  31  (1873). 

"Ordinary  care  to  discover  threatened  injury  is  all  that  is  re- 
quired under  the  doctrine  of  contributory  negligence. ' '  —  Stanley 
vs.  Cedar  Rapids  and  Marion  City  Railway  Company,  119  Iowa 
526,531  (1903). 

331 1  ( rj\^Q  empi0yee  should  exercise  such  care  as  a  prudent  person 
might  reasonably  be  expected  to  exercise  in  view  of  all  the  circum- 
stances of  the  particular  case,  so  far  as  they  are  known  to  him,  or 
are  discoverable  in  the  exercise  of  proper  diligence."  —  Baird  vs. 
Chicago,  Rock  Island  and  Pacific  Railway  Company,  61  Iowa  359, 
361,  362  (1883). 

A  high  degree  of  care  is  reasonable  in  running  a  train  at  night 


NOTES  AND  REFERENCES  251 

during  or  immediately  after  a  heavy  storm.  —  Scagel  vs.  Chicago, 
Milwaukee  and  St.  Paul  Railway  Company,  83  Iowa  380  (1891). 

332  Sprague  vs.  Atlee,  81  Iowa  1  (1890).  A  boy  of  thirteen,  inex- 
perienced in  the  operation  of  a  buzz-saw  was  not,  as  a  matter  of  law, 
guilty  of  negligence  in  changing  the  gauge  in  the  manner  in  which 
he  had  been  taught  to  do  it,  though  there  may  have  been  other  and 
safer  methods  of  effecting  the  change. 

333Hazlerigg  vs.  Dobbins,  145  Iowa  495,  499  (1909).  A  boy  of 
fourteen  was  not  guilty  of  contributory  negligence  in  permitting  his 
feet  to  dangle  from  the  power-sweep  whereon  he  was  riding,  though 
similar  conduct  on  the  part  of  an  elder  person  would  have  been 
negligent.  "Prior  to  the  age  of  fourteen  years",  said  Mr.  Justice 
McClain  in  speaking  for  the  court,  ' '  there  is  a  presumed  incapacity 
which  must  be  overcome  in  order  to  defeat  recovery  on  account  of 
contributory  negligence  by  proof  that  the  child  did  not  exercise  the 
care  and  discretion  usual  with  children  of  similar  age,  which  is  as- 
sumed to  be  less  than  that  required  of  persons  of  mature  years. ' ' 

Compare  Doggett  vs.  Chicago,  Burlington  and  Quincy  Railway 
Company,  134  Iowa  690  (1907). 

334  McDermott  vs.  Iowa  Falls  and  Sioux  City  Railway  Company, 
85  Iowa  180  (1892).  Brakeman  injured  by  slipping  upon  ice-cov- 
ered end-gate.  It  was  held  that  the  question  of  his  negligence  in 
stepping  upon  the  end-gate  would  depend  upon  the  haste  required 
in  the  performance  of  the  duty  in  which  he  was  then  engaged. 

335  prandsen  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 36  Iowa  372,  375  (1873).  But  an  emergency  created  by  an 
employee  will  not  excuse  his  contributory  negligence  at  the  time  of 
the  injury.  Nelling  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway 
Company,  98  Iowa  554,  562  (1896). 

338  Pike  vs.  Cedar  Rapids  and  Marion  City  Railway  Company,  131 
Northwestern  50  (Iowa,  1911).  A  street  car  conductor,  holding  a 
broken  trolley  pole,  was  not,  as  a  matter  of  law,  guilty  of  contribu- 
tory negligence  in  failing  to  see  a  span  of  wire  to  which  his  back  was 
turned  while  he  adjusted  the  trolley-wheel. 

So  in  Bryce  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Com- 
pany, 103  Iowa  665  (1897).     A  brakeman  was  struck  by  bolts  pro- 


252  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

jecting  from  a  truss  built  on  the  side  of  a  bridge  while  he  was  climb- 
ing down  the  side  ladder  of  a  box-car  in  order  to  reach  a  flat-car  to 
release  the  brake  on  the  latter.  It  was  held  that  he  was  not  negli- 
gent, as  a  matter  of  law,  in  not  looking  out  for  a  danger  which 
resulted  from  improper  construction  of  the  bridge,  and  of  which 
he  had  no  actual  knowledge.  Compare  McKee  vs.  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  83  Iowa  616  (1891),  where 
an  opposite  conclusion  was  reached  from  a  similar  state  of  facts. 

337  No  one  can  be  charged  with  negligence  in  failing  to  avoid  dan- 
gers of  which  he  knows  nothing.  —  Kearns  vs.  Chicago,  Milwaukee 
and  St.  Paul  Railway  Company,  66  Iowa  599  (1885). 

See  also  Short  vs.  Fort  Dodge  Light  and  Power  Company,  149 
Iowa  303  (1910). 

338  Greenleaf  vs.  Dubuque  and  Sioux  City  Railroad  Company,  33 
Iowa  52  (1871). 

339  Nichols  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
69  Iowa  154,  155  (1886). 

340  Greenleaf  vs.  Illinois  Central  Railroad  Company,  29  Iowa  14 
(1870)  ;  Nichols  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 69  Iowa  154  (1886)  ;  Stanley  vs.  Cedar  Rapids  and  Marion 
City  Railway  Company,  119  Iowa  526  (1903). 

341  Sprague  vs.  Atlee,  81  Iowa  1  (1890). 

342  Horan  vs.  Chicago,  St.  Paul,  Minneapolis  and  Omaha  Railway 
Company,  89  Iowa  328  (1893).  A  brakeman,  coupling  cars  in  the 
night  time,  is  not  bound  to  know  that  the  ballast  has  been  washed 
from  between  certain  ties  in  the  road-bed. 

343  In  determining  whether  a  brakeman  was  or  was  not  negligent, 
it  "is  always  competent  for  the  jury  to  take  into  consideration  the 
hazardous  nature  of  the  work  in  which  brakemen  are  employed; 
their  means  of  knowledge;  what  they  are  reasonably  required  to 
know,  in  the  nature  of  their  calling,  of  machinery ;  the  thought  and 
reflection  demanded  or  expected  of  such  persons ;  their  just  expecta- 
tion that  the  company  will  exercise  due  care  and  prudence  in  pro- 
tecting them  against  injury;  and  to  give  due  weight  to  those  in- 
stincts which  naturally  lead  men  to  avoid  injury  and  preserve  their 


NOTES  AND  REFERENCES  253 

lives."  —  Greenleaf  vs.  Illinois  Central  Railway  Company,  29  Iowa 
14,  48  (1870). 

344  Greenleaf  vs.  Illinois  Central  Railway  Company,  29  Iowa  14 
(1870). 

345  Pierson  vs.  Chicago  and  Northwestern  Railway  Company,  127 
Iowa  13  (1905). 

346  Magee  vs.  Chicago  and  Northwestern  Railway  Company,  82 
Iowa  249  (1891) .  Brakeman  stepped  off  moving  train  without  look- 
ing to  see  in  which  direction  it  was  going. 

347  McKee  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
83  Iowa  616  (1891).  Brakeman  was  struck  by  the  wing  fence  at  a 
cattle  guard,  while  leaning  out  from  the  side  ladder  of  a  car  to  in- 
vestigate a  broken  brake  beam.  It  was  held  (Justice  Beck  dissent- 
ing) that,  being  chargeable  with  knowledge  that  the  wing  fence 
approached  within  two  feet  of  the  bottom  of  the  car  he  was  negligent 
in  leaning  out  in  the  manner  that  he  did.  To  the  wrriter  it  seems 
more  consonant  with  justice  to  hold  that  this  case  comes  within 
the  rule  followed  in  Bryce  vs.  Chicago,  Milwaukee  and  St.  Paul 
Railway  Company,  103  Iowa  665  (1897).     See  note  336. 

348  Doggett  vs.  Illinois  Central  Railroad  Company,  34  Iowa  284 
(1872).  An  employee,  not  engaged  in  the  operation  of  the  train, 
rode  upon  the  engine-tender,  and  was  killed  by  the  breaking  down 
of  a  culvert.  Had  he  ridden  in  the  caboose,  he  would  not  have  been 
injured.     It  was  held  that  he  could  not  recover. 

349  Beckman  vs.  Consolidation  Coal  Company,  90  Iowa  252  (1894). 
Employee  left  a  "spring  switch"  open  and  was  injured  by  a  train 
of  mine  cars  thereby  thrown  onto  an  "empty"  track.  Stoeckle  vs. 
Great  Western  Cereal  Company,  150  Iowa  383  (1911).  Employee 
was  injured  by  defect  in  machine  which  he  had  just  repaired. 

350  Thoman  vs.  Chicago  and  Northwestern  Railway  Company,  92 
Iowa  196,  198  (1894).  Railway  employee  passed  near  a  box  car 
from  which  he  knew  ties  were  being  rapidly  thrown,  without  giving 
any  warning  of  his  approach. 

351  Ives  vs.  Welden,  114  Iowa  476  (1901). 

352  Taylor  vs.  Star  Coal  Company,  110  Iowa  40  (1899).     A  miner 


254  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

injured  on  Sunday  by  fall  of  slate  may  recover  notwithstanding  his 
violation  of  the  Sunday  law,  such  an  accident  being  no  more  likely 
to  happen  on  Sunday  than  on  other  days. 

353  Sedgwick  vs.  Illinois  Central  Railway  Company,  76  Iowa  340 
(1888).  Violation  of  rule,  without  necessity,  is  contributory  negli- 
gence as  a  matter  of  law  (brakeman  walking  between  cars  in  an 
attempt  to  uncouple  them  fell  into  a  cattle-guard  of  which  he  knew) . 

See  also  Coffman  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  90  Iowa  462  (1894). 

354  Reed  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  72  Iowa  166  (1887).  A  brakeman  went  between  cars  to 
make  a  coupling,  in  violation  of  a  rule  of  the  company,  but  it  ap- 
peared that  the  accident  would  not  have  been  avoided  had  he  ob- 
served the  rule.  It  was  held  that  he  was  not  negligent  as  a  matter 
of  law. 

355  pierson  VSi  Chicago  and  Northwestern  Railway  Company,  127 
Iowa  13  (1905).  It  was  not  negligence  as  a  matter  of  law,  for  a 
brakeman  to  go  between  cars  in  motion  and  draw  a  coupling  pin  by 
hand,  in  violation  of  a  standing  rule,  when  the  automatic  coupler 
was  out  of  order. 

sse  i  i  jt  was  ajso  competent  to  prove  this  custom  of  the  employes  at 
variance  with  the  rule,  if  it  was,  and  acquiescence  therein  by  the 
officers  of  the  company  as  establishing  waiver  thereof  as  the  court 
instructed."  —  Pike  vs.  Cedar  Rapids  and  Marion  City  Railway 
Company,  131  Northwestern  50,  52  (Iowa,  1911). 

See  also  Spaulding  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway 
Company,  98  Iowa  205  (1896)  ;  Strong  vs.  Iowa  Central  Railway 
Company,  94  Iowa  380  (1895). 

It  is  notorious  that  railway  companies  sometimes  make  rules  which 
their  employees  are  not  expected  to  observe,  but  the  violation  of 
which  is  set  up  as  contributory  negligence.  This  is  illustrated  by 
the  following  extracts  taken  respectively  from  a  General  Bulletin 
of  Rules  and  a  "speeding  up"  letter  of  the  same  railway  company. 

From  the  bulletin : 

"Employees  before  they  attempt  to  make  couplings  or  to  un- 
couple will  examine  and  see  that  the  cars  or  engines  to  be  coupled 


NOTES  AND  REFERENCES  255 

or  uncoupled,  couplers,  drawheads,  and  other  appliances  therewith, 
ties,  rails,  tracks,  and  road  beds  are  in  good,  safe  condition.  .  .  . 
They  must  exercise  great  care  in  coupling  and  uncoupling  cars.  In 
all  cases  sufficient  time  must  be  taken  to  avoid  accidents  or  personal 
injury." 

From  the  letter : 

"Entirely  too  much  time  is  being  lost,  especially  on  local  trains, 
due  to  train  and  engine  men  not  taking  advantage  of  conditions  in 
order  to  gain  time  doing  work,  switching,  and  unloading  and  loading 
freight.  Neither  must  you  wait  until  train  stops  to  get  men  in 
position.  It  is  also  of  the  utmost  importance  that  enginemen  be 
alive,  prompt  to  take  signals,  and  make  quick  moves.  In  this  re- 
spect it  is  only  necessary  to  call  your  attention  to  the  old  adage, 
which  is  a  true  one,  that  when  train  or  engine  men  do  not  make 
good  on  local  trains  it  thoroughly  demonstrates  those  men  are  detri- 
mental to  the  service  as  well  as  their  own  personal  interests,  and 
such  men,  instead  of  being  assigned  to  other  runs,  should  be  dis- 
pensed with."  —  Hearings  before  the  Employers'  Liability  and 
Workmen's  Compensation  Commission,  Senate  Documents,  Sixty- 
second  Congress,  1st  Session,  No.  90,  Vol.  II,  p.  239. 

357  Gibson  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  107  Iowa  596  (1899). 

358  Gorman  vs.  Des  Moines  Brick  Company,  99  Iowa  257  (1896). 
Employee  was  negligent,  as  a  matter  of  law,  in  attempting  to  adjust 
a  shaft  bearing  while  in  motion  when  he  knew  it  was  highly  danger- 
ous to  do  so  and  when  he  might  easily  have  stopped  the  machine. 

359  Reed  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  72  Iowa  166  (1887)  ;  Baird  vs.  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  61  Iowa  359  (1883). 

360  jjoran  VSm  Chicago,  St.  Paul,  Minneapolis  and  Omaha  Railway 
Company,  89  Iowa  328  (1893).  A  brakeman  discarded  a  stick 
provided  by  the  railway  company  to  be  used  in  making  couplings. 
It  did  not  appear  that,  under  the  particular  circumstances  the  coup- 
ling could  have  been  more  safely  made  by  the  use  of  such  stick.  It 
was  held  that  the  question  of  contributory  negligence  was  for  the 
jury. 


256  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

3d  pierson  vs  Chicago  and  Northwestern  Railway  Company,  127 
Iowa  13  (1905). 

3G2  "WTiitsett  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 67  Iowa  150  (1885). 

Stomne  vs.  Hanford  Produce  Company,  108  Iowa  137  (1899). 
Plaintiff  was  injured  while  riding  on  a  freight  elevator.  It  was 
customary  for  employees  moving  freight  to  ride  on  this  elevator, 
though  it  was  known  to  be  less  safe  than  the  passenger  elevator. 
It  was  held  that  the  question  of  contributory  negligence  was  for  the 
jury. 

363  j£r0y  VSm  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
32  Iowa  357,  366  ( 1871 ) .  To  stand  on  the  ' '  deadwood  "  of  a  moving 
ear  while  attempting  to  draw  the  coupling  pin  is  negligence  as  a 
matter  of  law,  notwithstanding  the  practice  may  be  customary. 

364Baird  vs.  Morford,  29  Iowa  531  (1870). 

365  Hopkinson  vs.  Knapp  and  Spalding  Company,  92  Iowa  328 
(1894)  ;  Murphy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 45  Iowa  661  (1877). 

366  Murphy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 45  Iowa  661  (1877). 

367  Ellis  vs.  Republic  Oil  Company,  133  Iowa  11  (1906). 

368  Dalton  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
104  Iowa  26  (1897). 

369  Phinney  vs.  Illinois  Central  Railroad  Company,  122  Iowa  488 
(1904). 

370  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  92,  pp. 
64,  65.  "Fault  of  the  workman"  includes  "lack  of  skill,  inatten- 
tion or  carelessness",  "Failure  to  use  safety  appliances  or  removal 
of  same",  "Acts  contrary  to  rules,  regulations,  etc.",  "Horse-play, 
mischief,  intoxication,  etc.",  and  "Unsuitable  clothing." 

371  Out  of  238  cases  investigated  in  Wisconsin  23.53%  were  esti- 
mated as  due  to  the  fault  of  the  Workman.  —  Report  of  the  Bureau 
of  Labor  Statistics,  Wisconsin,  1907-1908,  p.  4.  The  Minnesota 
Bureau  of  Labor  gives  21.05%  of  the  cases  investigated  due  to  the 


NOTES  AND  REFERENCES  257 

negligence  and  contributory  negligence  of  the  injured.  —  Twelfth 
Biennial  Report  of  the  Bureau  of  Labor,  Minnesota,  p.  188. 

372  Eastman's  Work  Accidents  and  the  Law,  p.  93. 

373  Compare  Shearman  and  Redfield's  The  Law  of  Negligent ■< , 
Fifth  Edition,  p.  267. 

374  See  above,  pp.  3,  4. 

375  Pound's  The  Need  of  a  Sociological  Jurisprudence  in  The 
Green  Bag,  Vol.  XIX,  pp.  607,  614. 

376  It  is  noteworthy  that  ' '  Fault  of  the  workman ' ',  in  the  much- 
quoted  German  statistics  of  work  accidents,  includes  "Lack  of  skill, 
inattention,  or  carelessness",  "Failure  to  use  safety  appliances  or 
removal  of  same",  "Acts  contrary  to  rules,  regulations,  etc.", 
"Horse-play,  mischief,  intoxication,  etc.",  and  "Unsuitable  cloth- 
ing". —  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  92,  p.  65. 

377  Eastman's  Work  Accidents  and  the  Law,  Ch.  VI. 

378 ' '  Contributory  negligence,  strictly  ....  speaking,  is 
negligence  that  operates  with  other  negligence  in  producing  a  re- 
sult". —  McKelvy  vs.  Burlington,  Cedar  Rapids  and  Northern  Rail- 
way Company,  84  Iowa  455,  458  (1892). 

379  See  above,  p.  21;  also  Shearman  and  Redfield's  The  Law  of 
Negligence,  Fifth  Edition,  p.  93. 

380  See  dicta  to  this  effect  in  Jerolman  vs.  Chicago  Great  Western 
Railway  Company,  108  Iowa  177  (1899). 

381  See  Schofield's  Davics  vs.  Mann.-  Theory  of  Contributory  Neg- 
ligence in  the  Harvard  Law  Review,  Vol.  Ill,  p.  266. 

382  rpi^-g  jg  ga^  to  ^  ^  re£j  reason  0f  t^g  ru]e  j^  Shearman  and 
Redfield's  The  Law  of  Negligence,  Fifth  Edition,  p.  93;  also  Beach 
on  Contributory  Negligence,  Third  Edition,  Sec.  12. 

"This  rule  [of  contributory  negligence]  is  based  upon  two  con- 
siderations, first,  that  no  person  shall  be  permitted  to  take  advantage 
of  his  own  wrong,  and  second,  the  supposed  inability  of  a  court  of 
law  to  apportion  the  damages  according  to  the  respective  faults  of 
the  parties. ' '  —  Wright  vs.  Illinois  and  Mississippi  Telegraph  Com- 
pany, 20  Iowa  195  (1866). 


258  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

383  jr>or  a  iuminous  discussion  of  this  point  see  Bohlen's  The  Vol- 
untary Assumption  of  Risk  in  the  Harvard  Law  Review,  Vol.  XX, 
p.  18,  footnote. 

384  Annotated  Statutes  of  Indiana,  1901,  Sec.  359  a. 

3S5  Arkansas  (violation  of  railway  sixteen-hour  law),  Digest  of 
the  Statutes  of  Arkansas,  1904,  Sec.  6654;  Georgia  (railway  safety 
laws),  Acts  of  Georgia,  1909,  No.  289;  Indiana  (railway  safety 
laws),  Acts  of  Indiana,  1909,  Ch.  62;  Iowa  (railway  safety  laws), 
Laws  of  Iowa,  1909,  p.  117;  Michigan  (railway  safety  laws),  Laws 
of  Michigan,  1909,  p.  211;  Mississippi  (railway  safety  laws),  Laws 
of  Mississippi,  1908,  Ch.  95. 

386  jror  ^g  a(jmiralty  rule  see  Woodrop-Sims  vs.  Jones,  2  Dod- 
son's  Admiralty  Reports  83,  85  (England,  1815)  ;  and  Beach  on 
Contributory  Negligence,  Third  Edition,  Sees.  402-404. 

' '  The  rule  of  admiralty  in  collisions,  apportioning  the  loss  in  case 
of  mutual  fault,  is  peculiar  to  the  maritime  law.  It  is  not  derived 
from  the  civil  law.  ...  It  emanated  from  the  ancient  maritime 
codes".  — The  Max  Morris,  28  Federal  Reports  881,  883  (1886). 

The  rule  applies  to  all  cases  of  marine  tort  founded  on  negli- 
gence. —  Atlee  vs.  Packett  Company,  21  Wallace  389  (United  States, 
1886). 

387  rpke  YUYe  0f  <  <  proportional  negligence "  is  to  be  distinguished 
from  that  of  ' '  comparative  negligence ' ',  with  which  it  is  sometimes 
confused.  By  the  latter  rule,  which  formerly  obtained  at  common 
law  in  Illinois,  recovery  is  allowed  only  where  the  negligence  of  the 
plaintiff  was  slight  and  that  of  the  defendant  gross  by  comparison. 
—  See  Beach  on  Contributory  Negligence,  Third  Edition,  Sees.  89-95. 

Some  of  the  statutes  cited  in  notes  388-393  below  establish  the 
rule  of  "comparative",  rather  than  that  of  "proportional",  negli- 
gence, the  distinction  not  being  deemed  important  in  the  present 
connection. 

388  Laws  of  Ohio,  1910,  p.  195. 

389  Annotated  Code  of  the  District  of  Columbia,  1906,  Ch.  129. 

390  Laws  of  Nevada,  1907,  Ch.  214,  p.  437. 

391  Laws  of  Maryland,  1902,  Ch.  412,  p.  595. 


NOTES  AND  REFERENCES  259 

392  Laws  of  Oregon,  1911,  Ch.  3. 

393  Georgia,  Laws,  1909,  No.  289,  p.  161 ;  Iowa,  Laws,  1909,  p.  117 ; 
Michigan,  Public  Acts,  1909,  No.  104,  p.  211 ;  Nebraska,  Laws,  1907, 
Ch.  48;  Nevada,  Laws,  1907,  Ch.  214,  p.  437;  North  Dakota,  Laws, 
1907,  Ch.  203 ;  South  Dakota,  Laws,  1907,  Ch.  219 ;  Texas,  Revised 
Civil  Statutes,  1911,  Sec.  6649;  Wisconsin,  Annotated  Statutes, 
1906,  Sec.  1816. 

In  Tennessee,  at  common  law,  plaintiff's  negligence  affects  only  a 
mitigation  of  damages. 

394  United  States  Statutes  at  Large  (1908),  Vol.  XXXV,  Ch.  149. 

395  Laws  of  Iowa,  1909,  pp.  117,  118. 

396  See  above,  pp.  42-44. 

397Labatt's  Employers'  Liability,  Ch.  XVII;  Greenleaf  vs.  Illi- 
nois Central  Railroad  Company,  29  Iowa  14  (1870)  ;  Kroy  vs.  Chi- 
cago, Rock  Island  and  Pacific  Railway  Company,  32  Iowa  357 
(1871)  ;  Perigo  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 52  Iowa  276  (1879)  ;  Duffey  vs.  Consolidated  Block  Coal  Com- 
pany, 147  Iowa  225  (1910). 

398  <  *  rj^g  ruie  fin(js  its  support  in  the  reason  that  the  continuance 
of  the  servant  in  the  employment  of  his  master  is  purely  voluntary, 
and  if  he  so  continues  without  objection,  writh  knowledge  of  defects 
in  machinery  or  the  incompetency  of  his  co-employees,  he  is  pre- 
sumed to  have  waived  the  right  to  insist  upon  indemnity  for  in- 
juries resulting  from  such  incompetency  and  defects."  —  Kroy  vs. 
Chicago,  Rock  Island  and  Pacific  Railway  Company,  32  Iowa  357, 
361   (1871). 

399  That  the  doctrine  of  assumption  of  risk  is  but  a  particular 
application  of  volenti  non  fit  injuria  see  Thomas  vs.  Quartermaine, 
Law  Reports,  18  Queen's  Bench  Division,  685  (England,  1887)  ; 
Gorman  vs.  Des  Moines  Brick  Company,  99  Iowa  257  (1896)  ; 
Cowles  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  102 
Iowa  507  (1897)  ;  Miller  vs.  White  Bronze  Monument  Company,  141 
Iowa  701,  712,  713  (1909). 

400  See  Labatt's  Employers'  Liability,  Vol.  I,  p.  620. 

401  "Assumption  of  risk  has  come  to  be  used  in  a  twofold  sense. 


260  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

It  is  often  said  that  an  employee  assumes  the  ordinary  risk  that  is 
incident  to  his  employment.  This  form  of  assumption  of  risk  is 
often  pleaded  by  defendants  in  personal  injury  cases,  although  it  is 
quite  unnecessary  to  do  so.  Assumption  of  risk  in  its  true  sense 
has  reference  to  those  risks  arising  out  of  the  negligence  of  the  mas- 
ter when  such  negligence  is  known  to  the  employee,  and  the  danger 
therefrom  appreciated  by  him.  In  the  first  form  herein  indicated 
a  specific  pleading  of  assumption  of  risk  of  the  ordinary  dangers 
incident  to  an  employment  is  a  mere  amplification  of  the  general 
denial,  and  adds  nothing  to  it  in  a  legal  sense.  In  the  second  form 
herein  indicated  it  is  an  affirmative  defense  and  must  be  specifically 
pleaded  as  such."  —  Mr.  Justice  Evans,  in  Duffey  vs.  Consolidated 
Block  Coal  Company,  147  Iowa  225,  228  (1910). 

The  two  forms  of  "assumption  of  risk"  are  quite  fully  distin- 
guished in  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa 
724  (1906). 

402 ' '  'Assumption  of  risk'  is,  in  effect,  a  waiver  of  defects  and  dan- 
gers, and  a  consent  on  the  part  of  the  employee  to  assume  them,  no 
matter  whether  he  be  careful  or  negligent  in  his  conduct.  .  .  . 
In  such  cases  the  injured  party  may  at  the  time  be  in  the  exercise 
of  all  the  care  which  the  law  requires,  and  still  have  no  right  of 
recovery.  ...  Of  course,  facts  showing  contributory  negli- 
gence may  also  prove  assumption  of  risk;  but  rarely,  if  at  all,  will 
proof  that  one  did  not  assume  risk  also  show  that  at  a  given  time  he 
was  in  the  exercise  of  ordinary  prudence  for  his  own  safety.  .  .  . 
Assumption  of  risk  is  a  matter  of  contract,  express  or  implied ;  while 
contributory  negligence  is  a  matter  of  conduct. ' '  —  Mr.  Justice 
Deemer  in  Miller  vs.  White  Bronze  Monument  Company,  141  Iowa 
701,  712,  713  (1909).  Compare  Gorman  vs.  Des  Moines  Brick  Com- 
pany, 99  Iowa  257  (1896).  In  both  these  cases  the  plaintiff  was 
absolved  from  assumption  of  risk  but  denied  recovery  on  the  ground 
of  contributory  negligence. 

403  Martin  vs.  Des  Moines  Edison  Light  Company,  131  Iowa  734 
(1906)  ;  Mace  vs.  Boedker  and  Company,  127  Iowa  721  (1905)  ; 
Cinkovitch  vs.  Thistle  Coal  Company,  143  Iowa  595,  601  (1909)  ; 
Duffey  vs.  Consolidated  Block  Coal  Company,  147  Iowa  225  (1910). 

404 ' '  Knowledge,  either  actual  or  imputed,  because  of  what  should 


NOTES  AND  REFERENCES  261 

have  been  known  by  the  exercise  of  ordinary  prudence,  is  abso- 
lutely essential  before  the  risk  may  be  said  to  have  been  assumed. ' ' 
—  Wilder  vs.  Great  Western  Cereal  Company,  130  Iowa  263,  269 
(1906).  Compare  Coates  vs.  Burlington,  Cedar  Rapids  and  North- 
ern Railway  Company,  62  Iowa  486  (1883),  and  the  cases  cited  in 
note  403  above. 

405  Carver  vs.  Minneapolis  and  St.  Louis  Railway  Company,  120 
Iowa  346,  347  (1903).  —  "Mere  knowledge  of  a  dangerous  custom 
is  not  sufficient  to  throw  the  risk  thereof  upon  the  person  having 
such  knowledge  unless  he  has  also  appreciated  the  danger  involved." 

See  also  Mace  vs.  Boedker  and  Company,  127  Iowa  721  (1905)  ; 
Mayes  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  63 
Iowa  562  (1884)  ;  Cinkovitch  vs.  Thistle  Coal  Company,  143  Iowa 
595,  601  (1909),  and  cases  there  cited. 

4oa  <<An  employee  who  knows,  or  by  the  exercise  of  ordinary  dili- 
gence could  know,  of  any  defects  or  imperfections  in  the  things 
about  which  he  is  employed,  and  continues  in  the  service  without 
objection,  and  without  promise  of  change,  is  presumed  to  have  as- 
sumed all  the  consequences  resulting  from  such  defects,  and  to  have 
waived  all  right  to  recover  for  injuries  caused  thereby. ' '  —  Perigo 
vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  52  Iowa 
276,  277  (1879). 

For  other  statements  comprising  the  elements  necessary  to  con- 
stitute "implied  assumption  of  extraordinary  risks",  see  Greenleaf 
vs.  Illinois  Central  Railroad  Company,  29  Iowa  14,  46  (1870)  ;  Mum- 
ford  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  128 
Iowa  685,  689  (1905)  ;  Martin  vs.  Des  Moines  Edison  Light  Com- 
pany, 131  Iowa  724,  735  (1906). 

407  i  i  what  a  man  ....  ought,  by  the  exercise  of  reason- 
able diligence  to  know,  he  does  know."  —  Bryce  vs.  Chicago,  Mil- 
waukee and  St.  Paul  Railway  Company,  103  Iowa  665,  671  (1897). 

408  Olson  vs.  Hanford  Produce  Company,  118  Iowa  55  (1902). 

409  Harney  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 115  Northwestern  886  (Iowa,  1908). 

410Shebeck  vs.  National  Cracker  Company,  120  Iowa  414  (1903). 


262  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

411  Nugent  vs.  Cudahy  Packing  Company,  126  Iowa  517  (1905). 
A  carpenter  is  not  presumed  to  have  knowledge  of  the  sufficiency 
of  a  brick  pier  to  support  a  building. 

412Crabell  vs.  Wapello  Coal  Company,  68  Iowa  751  (1886).  A 
car  conductor  killed  on  the  first  day  of  his  employment  in  that  ca- 
pacity is  not  chargeable  with  knowledge  of  dangers  from  the  roof 
and  walls  of  the  slope. 

413  Bryce  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
103  Iowa  665  (1897).  A  brakeman,  who  is  usually  on  the  top  of 
cars  while  crossing  a  bridge,  is  not  chargeable  with  knowledge  of 
the  distance  between  the  bridge  truss  and  the  sides  of  the  cars. 

414  Youll  vs.  Sioux  City  and  Pacific  Railway  Company,  66  Iowa 
346  (1885).  A  brakeman  seventeen  years  of  age  held  to  have 
assumed  the  risk  of  making  a  flying  switch. 

McCarthy  vs.  Mulgrew,  107  Iowa  76  (1898).  A  boy  fifteen  years 
of  age  who,  without  objection  or  promise  of  repair,  works  for  three 
years  with  a  machine,  assumes  the  risk  incident  to  its  use  and  waives 
any  defects  therein. 

415  Shebeck  vs.  National  Cracker  Company,  120  Iowa  414  (1903). 
An  instruction  was  erroneous  which  did  not  direct  the  jury  to  con- 
sider the  age  of  the  servant,  a  boy  of  eighteen,  in  determining  the 
question  of  assumption  of  risk. 

In  Woolf  vs.  Mauman  Company,  128  Iowa  261  (1905),  an  instruc- 
tion was  approved  which  made  it  incumbent  upon  the  defendant  to 
show  that  a  boy  of  fourteen  possessed  sufficient  knowledge  and  ex- 
perience to  comprehend  the  dangers  of  operating  a  buzz-saw. 

416  Coles  vs.  Union  Terminal  Railway  Company,  124  Iowa  48 
(1904). 

417  Harney  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 115  Northwestern  886  (Iowa,  1908). 

418  Wells  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  56  Iowa  520  (1881)  . 

419  Olson  vs.  Hanford  Produce  Company,  118  Iowa  55  (1902). 

420  perig0  vs,  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 52  Iowa  276  (1879). 


NOTES  AND  REFERENCES  263 

421  In  Harney  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 115  Northwestern  886  (Iowa,  1908),  it  was  held  that  the  dan- 
ger that  a  board  will  be  caught  and  drawn  back  by  the  teeth  of  an 
unguarded  saw  is  not  apparent  to  an  inexperienced  operator.  In 
Kerns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  94 
Iowa  121  (1895),  it  was  held  a  yard  employee  is  not  bound  to  ap- 
preciate the  danger  of  coupling  a  pilot  bar  to  a  box-car.  But  in 
Sutton  vs.  Des  Moines  Bakery,  135  Iowa  390  (1907)  an  expe- 
rienced operative  is  held  to  have  assumed  the  risk  that  his  hand  may 
be  caught  between  the  unguarded  rollers  of  a  dough  mixer. 

422  Money  vs.  Lower  Vein  Coal  Company,  55  Iowa  671  (1881). 

423  Box  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
107  Iowa  660  (1899). 

424  Way  vs.  Chicago  and  Northwestern  Railway  Company,  76 
Iowa  393  (1888). 

425  Youll  vs.  Sioux  City  and  Pacific  Railway  Company,  66  Iowa 
346  (1885).    Employee  assumed  the  risk  of  making  a  flying  switch. 

426Poli  vs.  Numa  Block  Coal  Company,  127  Northwestern  1105, 
1107  (Iowa,  1910),  and  authorities  there  cited. 

427  Martin  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 118  Iowa  148  (1902).  The  speed  ordinance,  enacted  for  the 
safety  of  the  general  public,  was  habitually  violated  by  the  com- 
pany, within  the  knowledge  of  the  plaintiff. 

428  Bromberg  vs.  Evans  Laundry  Company,  134  Iowa  38,  44 
(1907). 

429  Sutton  vs.  Des  Moines  Bakery  Company,  135  Iowa  390  (1907). 
Mr.  Justice  McClain,  rendering  the  opinion  of  the  Court,  treated  the 
statutory  provision  that  "all  machinery  of  every  description  shall 
be  properly  guarded ' '  as  simply  declaratory  of  the  common  law  ( p. 
393)  — i.  e.  as  of  no  effect  —  and  remarked  (at  p.  394),  "If  the 
plaintiff  knew  of  the  absence  of  a  safety  hood,  and  was,  as  a  reason- 
ably prudent  man,  charged  with  knowledge  of  the  danger  to  him  in 
continuing  in  his  employment  in  the  absence  of  such  a  safety  hood, 
then  he  assumed  the  risk".  —  In  the  Poli  case,  cited  in  note  426, 


264  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

this  language  is  treated  as  mere  obiter  dicta  and  the  decision  is 
construed  as  turning  on  the  question  of  contributory  negligence. 

430  Poli  vs.  Numa  Block  Coal  Company,  127  Northwestern  1105, 
1107  (Iowa,  1910).  The  eager  had  his  hand  crippled  by  a  lump  of 
coal  falling  from  the  top  of  the  shaft.  A  statute  requires  a  sufficient 
cover  overhead  on  every  box  or  carriage  used  for  hoisting  purposes, 
and  the  injury  was  due  to  a  violation  of  this  statute. 

431  Poli  vs.  Numa  Block  Coal  Company,  127  Northwestern  1105 
(Iowa,  1910),  opinion  of  Mr.  Justice  Weaver  at  p.  1106. 

432  Tyrrell  vs.  Cain,  128  Northwestern  536  (Iowa,  1910),  majority 
opinion  by  Mr.  Justice  McClain  at  p.  537.  But  this  case  has  been 
withdrawn  for  a  re-hearing. 

433  Stephenson  vs.  Sheffield  Brick  and  Tile  Company,  130  North- 
western 586,  588  (Iowa,  1911)  ;  Miller  vs.  Cedar  Rapids  Sash  and 
Door  Company,  134  Northwestern  411,  416  (Iowa,  1912)  ;  Verlin  vs. 
United  States  Gypsum  Company,  135  Northwestern  402,  404  (Iowa, 
1912)  ;  Lamb  vs.  Wagner  Manufacturing  Company,  136  North- 
western 203,  204  (Iowa,  1912). 

434  Kilpatrick  vs.  Grand  Trunk  Railway  Company,  74  Vermont 
288  (1902),  a  leading  case;  Sipes  vs.  Michigan  Starch  Company,  137 
Michigan  258  (1904)  ;  Durant  vs.  Lexington  Coal  Mining  Company, 
97  Missouri  62  (1888)  ;  Green  vs.  Western  American  Company,  30 
Washington  87  (1902)  ;  Island  Coal  Company  vs.  Swaggerty,  159 
Indiana  664  (1902)  ;  Spring  Valley  Coal  Company  vs.  Patting,  210 
Illinois  342  (1904). 

435  See  the  dissenting  opinion  of  Mr.  Justice  Deemer  in  Tyrrell  vs. 
Cain,  128  Northwestern  536,  540  (Iowa,  1910). 

436  "It  is  only  where  an  employee  has  been  made  aware  of  the 
danger,  sufficiently  in  advance  to  enable  him  to  protect  himself 
therefrom  that  application  of  the  doctrine  of  assumption  of  risk  can 
be  made.  Now,  knowledge  of  the  danger  may  come  from  a  warning 
given,  or  by  actual  discovery  thereof,  in  time  to  avoid  an  accident. ' ' — 
Coles  vs.  Union  Terminal  Company,  124  Iowa  48,  51,  52  (1904). 

Compare  Pieart  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  82  Iowa  148,  159-162  (1891). 


NOTES  AND  REFERENCES  265 

437  Bryce  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  128  Iowa  483,  487  (1905). 

438  <  <  jf  ne  macje  such  protest  and  was  given  a  promise  that  it 
should  be  repaired,  he  did  not  assume  the  risk  until  such  time  had 
elapsed,  without  the  promise  being  complied  with,  as  that  a  person 
of  ordinary  care  and  prudence  would  understand  that  the  promise 
was  not  to  be  kept.  After  the  expiration  of  such  time,  plaintiff,  if 
he  continued  in  defendant's  employ,  would  in  law  re-assume  the 
hazard,  and  could  not  recover  for  any  injuries  received  by  reason 
of  the  defect."  —  Miller  vs.  White  Bronze  Monument  Company,  141 
Iowa  701,  708,  709  (1908). 

To  the  same  effect  see  Bruns  vs.  North  Iowa  Brick  Company,  130 
Northwestern  1083,  1085  (Iowa,  1911)  ;  Foster  vs.  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  127  Iowa  84  (1905). 

439  Stoutenburgh  vs.  Dow,  Gilman,  Hancock  Company,  82  Iowa 
179  (1891). 

440  Pieart  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
82  Iowa  148,  159-162  (1891).  The  railway  company  was  bound  by 
the  promise  of  a  yardmaster  in  regard  to  repairing  a  switch  engine. 

441 1 1  rpne  servarit  does  not,  Dy  simpiy  remaining  in  the  employ  of 
his  master,  with  knowledge  of  defects  in  the  machinery  which  he  is 
obliged  to  use,  assume  the  risks  attendant  upon  the  use  of  such  ma- 
chinery. Such  results  follow  only  when  he  remains  in  the  master's 
service  without  objection  or  protest  against  the  continuance  of  the 
defects. ' '  —  Greenleaf  vs.  Dubuque  and  Sioux  City  Railroad  Com- 
pany, 33  Iowa  52,  58  (1871). 

A  similar  expression  was  used  in  Box  vs.  Chicago,  Rock  Island 
and  Pacific  Railway  Company,  107  Iowa  660,  668  (1899). 

But  such  expressions  are  to  be  treated  as  dicta,  or  as  incomplete 
statements  of  the  law,  sufficient  only  for  the  particular  case.  Neither 
case  herein  cited  is  authority  for  a  rule  whereby  mere  protest,  with- 
out promise  of  repair,  would  relieve  a  servant  of  assumption  of  risk. 

442  "If  the  deceased  knew  there  were  no  run-boards  on  the  engine, 
and  continued  in  the  employment  without  complaint,  or  if,  having 
complained,  he  continued  in  the  employment  without  assurances 
from  which  he  had  a  right  to  believe  that  run-boards  would  be  fur- 


266  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

nished,  then  he  waived  the  negligence,  and  assumed  the  risk". — 
Pieart  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  82 
Iowa  148,  161  (1891). 

See  also  Mumford  vs.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  128  Iowa  685  (1905). 

443  Frandsen  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 36  Iowa  372  (1873).  A  section  hand  remained  on  hand  car 
by  order  of  the  foreman,  though  he  knew  that  a  passenger  train  for 
which  the  section  crew  were  to  yield  the  track  was  overdue.  Strong 
vs.  Iowa  Central  Railway  Company,  94  Iowa  380  (1895).  Brake- 
man  stood  on  the  locomotive  pilot  to  make  a  coupling  by  order  of 
the  engineer. 

444  Gorman  vs.  Des  Moines  Brick  Company,  99  Iowa  257  (1896). 
An  order  to  crowd  a  machine  and  not  to  allow  it  to  stop  was  not  a 
command  to  attempt  to  adjust  its  bearings  while  in  motion. 

445Wahlquist  vs.  Maple  Grove  Coal  and  Mining  Company,  116 
Iowa  720  (1902). 

446  Stomne  vs.  Hanford  Produce  Company,  108  Iowa  137  (1899). 
An  employee  was  justified  in  relying  upon  the  superindendent 's 
assurance  as  to  the  safety  of  an  elevator  cable. 

' '  Quite  naturally,  an  employe  is  inclined  to  rely  upon  instructions 
or  information  of  his  superior  in  charge  as  to  the  manner  of  per- 
forming the  duties  exacted  of  him.  The  tendency  thereof  is  to  lull 
him  into  security  and  influence  him  to  yield,  without  the  investiga- 
tion he  otherwise  would  have  made,  to  such  superior's  judgment 
with  respect  to  the  method  to  be  pursued  in  doing  what  is  re- 
quired. ' '  —  Verlin  vs.  United  States  Gypsum  Company,  135  North- 
western 402,  404  (Iowa,  1912). 

447  Perigo  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 52  Iowa  276  (1879). 

448Labatt's  Employers'  Liability,  Section  281. 

449  <  t  Ttie  doctrine  was  first  announced,  in  all  its  repulsive  naked- 
ness, by  the  late  Lord  Bramwell,  one  of  the  straitest  of  the  sect  of 
those  economic  Pharisees  whose  Gamaliels  were  such  writers  as  Ri- 


NOTES  AND  REFERENCES  267 

cardo  and  John  Stuart   Mill."  —  Labatt's  Employers'  Liability, 
Vol.  I,  p.  156. 

450  "Apart  from  the  relation  of  master  and  servant,  and  inde- 
pendent altogether  of  it,  one  man  cannot  sue  another  in  respect  of  a 
danger  or  risk,  not  unlawful  in  itself,  that  was  visible,  apparent, 
and  voluntarily  encountered  by  the  injured  person."  —  Thomas  vs. 
Quartermaine,  Law  Reports,  18  Queen's  Bench  Division,  685,  699 
(England,  1887). 

451  <  <  rpne  servant  is  not  bound  to  risk  his  safety  in  the  service  of 
his  master,  and  may,  if  he  thinks  fit,  decline  any  service  in  which  he 
reasonably  apprehends  injury  to  himself".  —  Priestley  vs.  Fowler, 
3  Meeson  and  Welsby  1,  5,  6  (England,  1837). 

"No  prudent  man  would  engage  in  any  perilous  employment, 
unless  seduced  by  greater  wages  than  he  could  earn  in  a  pursuit 
unattended  by  any  unusual  danger."  —  Chancellor  Johnson's  opin- 
ion in  Murray  vs.  South  Carolina  Railroad  Company,  1  McMullan 
385,  402  (South  Carolina,  1841). 

"Where  several  persons  are  employed  in  the  conduct  of  one  com- 
mon enterprise  ....  each  is  an  observer  of  the  conduct  of 
the  others  ....  and  can  leave  the  service,  if  the  common 
employer  will  not  take  such  precautions,  and  employ  such  agents, 
as  the  safety  of  the  whole  party  may  require. ' '  —  Farwell  vs.  Bos- 
ton and  Worcester  Railroad  Corporation,  4  Metcalf  49,  59  (Massa- 
chusetts, 1842). 

' '  This  rule  finds  its  support  in  the  reason  that  the  continuance  of 
the  servant  in  the  employment  of  his  master  is  purely  volun- 
tary".—  Kroy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, 32  Iowa  357,  361  (1871). 

Compare  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Com- 
pany, 11  Iowa  421,  424  (1860). 

452  rp^  theory  that  volenti  non  fit  injuria  applies  to  cases  where 
the  plaintiff 's  ' '  assent ' '  to  the  wrong  done  him  is  a  mere  implication 
from  the  fact  that  the  danger  was  knowingly  encountered  is  a  recent 
development  of  law.  —  Labatt's  Employers'  Liability,  Vol.  I,  p.  971. 

Implied  assumption  of  extra-ordinary  risks  seems  to  have  been 
first  explicitly  laid  down  by  Lord  Bramwell  in  Dynen  vs.  Leach,  26 
Law  Reports,  Exchequer,  New  Series,  221   (1857).     The  rule  was 


268  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

first  applied  in  Iowa  in  1870.  —  Greenleaf  vs.  Illinois  Central  Rail- 
way Company,  29  Iowa  14. 

453  "Nor  is  it  true  in  the  broadest  sense  that  the  workman  may 
leave  the  service.  It  might  be  true  from  the  standpoint  of  one 
writing  a  treatise  on  free  will".  —  Lewis's  State  Insurance,  p.  88. 

454  "Notwithstanding  the  absolute  liberty  with  which  every  in- 
dividual is  legally  endowed  to  enter  into  contract  for  his  personal 
labor  or  service  and  his  equal  legal  right  to  abandon  such  service  at 
any  time  subject  only  to  liability  for  damages  in  case  such  act  be 
not  justified,  it  is  nevertheless  true  in  practical  life  that  poverty, 
scarcity  of  employment,  dependent  family,  and  other  circumstances 
often  impose  a  moral  compulsion  upon  the  laborer  to  accept  employ- 
ment upon  such  terms  and  under  such  conditions  as  are  offered  him, 
and  it  is  in  recognition  of  this  fact,  as  well  as  the  further  facts,  that 
society  has  a  direct  interest  in  preserving  the  lives  and  promoting 
the  well  being  of  all  persons  engaged  in  productive  industry  that 
laws  have  been  enacted  to  protect  them  against  unnecessary  hazard 
of  injury  by  failure  of  employers  to  exercise  proper  care  for  their 
safety. ' '  —  Poli  vs.  Numa  Block  Coal  Company,  127  Northwestern 
1105,  1107  (Iowa,  1910). 

' '  Everybody  knows  that  there  are  large  classes  who  get  their  liv- 
ing from  day  to  day,  in  such  service  as  the  plaintiff  was  engaged, 
who  must  work  where  they  are  working,  and  keep  their  jobs  at  all 
hazards,  if  they  would  not  bring  themselves  and  their  families  to 
want."  —  Kilpatrick  vs.  Grand  Trunk  Railway  Company,  52  At- 
lantic 531,  535  (Vermont,  1902). 

455  <  c  ^Q  liberty  of  the  wage-earner  to  contract  for  extra  pay  for 
extra  hazard  and  to  seek  some  other  employment  if  he  does  not  like 
his  master's  methods  is  a  myth".  —  Caspar  vs.  Lewin,  109  Pacific 
657,  667  (Kansas,  1910). 

See  dissenting  opinion  of  Mr.  Justice  Beck  in  Patton  vs.  Central 
Iowa  Railway  Company,  73  Iowa  306,  310  (1887). 

456  Kilpatrick  vs.  Grand  Trunk  Railway  Company,  62  Atlantic 
531,535  (Vermont,  1902). 

457 1  i  Ttle  doctrine  [of  assumption  of  risks] ,  to  say  the  least  of  it, 
in  its  effects  is  cruel  and  oppressive  towards  the  employes  who  are 


NOTES  AND  REFERENCES  269 

thus  compelled  to  choose  between  employment  with  dangers  known 
to  them  and  idleness  with  safety.  The  necessities  of  nature,  bread 
and  raiment  will  compel  them  to  take  even  dangerous  employment 
rather  than  idleness  with  want.  Employers  thus  hold  a  whip  over 
their  employes,  forcing  them  to  perform  services  attended  by  dan- 
gers arising  from  the  negligent  acts  of  the  employers  themselves. ' '  — 
Dissenting  opinion  of  Mr.  Justice  Beck  in  Patton  vs.  Central  Iowa 
Railway  Company,  73  Iowa  306,  311  (1887). 

458  The  Iowa  Supreme  Court  has  declared  that  the  doctrine  ought 
not  to  be  extended  beyond  the  limits  fairly  indicated  by  controlling 
precedents.  —  Arenschield  vs.  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  128  Iowa  677,  681  (1905). 

459  Laws  of  Iowa,  1890,  p.  31 ;  Code  of  1897,  Sec.  2083. 

460  House  File,  No.  14,  31st  General  Assembly  (1906). 

461  Official  Directory  of  the  Iowa  Federation  of  Labor,  1906,  p.  133. 

462  Substitute  for  Senate  File,  No.  236,  32nd  General  Assembly 
(1907)  ;  Official  Directory  of  the  Iowa  Federation  of  Labor,  1907, 
p.  123. 

463  Laws  of  Iowa,  1907,  p.  182 ;  Code  of  Iowa,  Supplement  of  1907, 
Sec.  4999-a  3. 

464  Official  Directory  of  the  Iowa  Federation  of  Labor,  1907,  pp. 
123,  127. 

465  Laws  of  Iowa,  1909,  p.  200. 

466  In  Miller  vs.  Cedar  Rapids  Sash  and  Door  Company,  134 
Northwestern  411,  416  (Iowa,  1912),  the  assumption  of  risk  act  of 
1909  was  treated  as  valid,  but  neither  the  constitutionality  nor  the 
scope  of  the  act  was  discussed,  nor  does  it  appear  that  a  different 
decision  would  have  been  reached  in  the  absence  of  the  statute. 

In  Verlin  vs.  United  States  Gypsum  Company,  135  Northwestern 
402  (Iowa,  1912),  plaintiff,  while  oiling  a  motor,  slipped  and  was 
caught  by  an  unguarded  cog-wheel.  The  factory  acts  required  such 
wheels  to  be  properly  guarded  and  it  was  no  part  of  plaintiff's  duty 
to  make  repairs  or  remedy  defects.  The  Court  remarked,  at  p.  404, 
that  any  doubt  as  to  plaintiff's  assumption  of  the  risk  of  the  absence 
of  a  guard  was  disposed  of  by  the  assumption  of  risk  act  of  1909. 


270  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

But  the  Court  had  already  held  that,  at  common  law,  a  servant  does 
not  assume  the  risk  of  his  employer's  violation  of  a  safety-appliance 
statute.     See  note  433  above. 

467  Taylor  vs.  Star  Coal  Company,  110  Iowa  40  (1899)  ;  Thayer 
vs.  Smoky  Hollow  Coal  Company,  121  Iowa  121  (1903). 

468  "Wahlquist  vs.  Maple  Grove  Coal  and  Mining  Company,  116 
Iowa  720  (1902). 

469  Beckman  vs.  Consolidation  Coal  Company,  90  Iowa  252 
(1894)  ;  Stoeckle  vs.  Great  Western  Cereal  Company,  150  Iowa  383, 
389  (1911). 

470  Nappa  vs.  Erie  Railroad  Company,  195  New  York  176  (1909). 
A  skid  used  by  freight  handlers  is  not  a  part  of  the  ' '  ways  works  or 
machinery ' '  of  the  employer. 

See  also  Pluckham  vs.  American  Bridge  Company,  104  New  York 
Appellate  Division  404  (1905). 

471  See  Thomas  vs.  Quartermaine,  Law  Reports,  18  Queen's  Bench 
Division,  685  (England,  1887). 

472  See  above,  p.  47  and  note  312. 

473  Laws  of  Iowa,  1909,  pp.  117,  118. 

474  See  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  92,  pp. 
64,  65. 

475  Thirteenth  Biennial  Report  of  the  Wisconsin  Bureau  of  Labor 
Statistics,  1907-1908,  p.  4. 

476  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Labor, 
1909-1910,  p.  188. 

477  Pound's  Enforcement  of  the  Law  in  The  Green  Bag,  Vol.  XX, 
p.  401. 

478  Eastman's  Work  Accidents  and  the  Law,  pp.  187,  188. 

479  Labatt's  Employers'  Liability,  Preface. 

480  In  twenty-three  cases  nothing  could  be  learned  concerning 
compensation,  in  ten  cases  the  amount  of  indemnity  was  not  ascer- 
tained, and  thirteen  cases  were  pending  at  the  close  of  the  investi- 
gation. 


NOTES  AND  REFERENCES  271 

481  For  the  facts  recited  in  this  paragraph  see  Eastman's  Work 
Accidents  and  the  Law,  Ch.  VIII. 

482  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
pp.  183-185. 

483  See  First  Report  of  the  New  York  Employers'  Liability  Com- 
mission, 1910,  pp.  20-22. 

484  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Labor, 
1909-1910,  Part  II,  Ch.  IV.  The  facts  are  exhibited  in  the  following 
table : 


Injury 

Number  op 

Cases 

Cases 

Substaxtial- 

Investigated 

LTl 

ndemnified 

Death 

54 

6 

Permanent  total  disabil 

Lty 

6 

1 

Loss  of  eye 

9 

3 

Loss  of  hand 

7 

2 

Loss  of  fingers 

9 

4 

Loss  of  arm 

4 

2 

Loss  of  leg 

5 

1 

Loss  of  foot 

9 

3 

Miscellaneous 

5 

1 

Permanent  injuries 

Temporary  complete  disability 

50 

25 

All  accidents 

158 

48 

485  Thirteenth  Biennial  Report  of  the  Wisconsin  Bureau  of  Labor 
Statistics,  1907-1908,  p.  54. 

486  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  25. 

487  Eastman's  Work  Accidents  and  the  Jjaw,  p.  331. 

488  Eastman's  Work  Accidents  and  the  Law,  p.  126. 

489 First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  pp.  22,  23,  and  Appendix,  XIX. 

490  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Labor, 
1909-1910,  p.  155. 

491  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Ljabor, 
1909-1910,  pp.  157,  158.  The  startling  discrepancies  are  due  to  a 
few  very  large  verdicts,  as  $10,000  for  the  loss  of  an  arm  and  $8650 
for  the  loss  of  a  leg.  The  averages  really  mean  little  and  are  chiefly 
significant  as  illustrating  the  wholly  haphazard  operation  of  the  law. 


272  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

492  Report  of  the  Michigan  Employers'  Liability  and  Workmen's 
Compensation  Commission,  1911,  pp.  9,  15,  16. 

493  Hospital  expenses  were  paid  by  the  employer  in  84  per  cent  of 
the  cases  investigated  in  the  Pittsburgh  Survey.  —  Eastman's  Work 
Accidents  and  the  Law,  p.  123.  The  cost  of  burial  was  paid  by  the 
employer  in  all  but  113  of  355  fatal  accident  cases.  —  Eastman's 
Work  Accidents  and  the  Law,  pp.  121,  122. 

In  54  fatal  accident  cases  investigated  by  the  Minnesota  Bureau  of 
Labor,  50  per  cent  received  no  compensation,  and  in  only  16  per 
cent  did  they  receive  funeral  and  medical  expenses.  —  Twelfth  Bi- 
ennial Report  of  the  Minnesota  Bureau  of  Labor,  1909-1910,  p.  155. 

494  Eastman's  Work  Accidents  and  the  Law,  pp.  127,  128. 

495  <  i  n0  pru(jent  man  would  engage  in  any  perilous  employment, 
unless  seduced  by  greater  wages  than  he  could  earn  in  a  pursuit  un- 
attended by  any  unusual  danger. ' '  —  Chancellor  Johnson 's  opinion 
in  Murray  vs.  South  Carolina  Railroad  Company,  1  McMullan  385, 
402  (South  Carolina,  1841). 

"The  risks  thus  arising,  ....  [from  dangers  incident  to 
the  service]  the  servant  takes  upon  himself  and  his  wages  are  con- 
sidered to  be  his  full  compensation  for  the  danger  thus  incurred  as 
well  as  for  the  actual  labor  of  his  hands. ' '  —  Martin  vs.  Des  Moines 
Edison  Light  Company,  131  Iowa  724  (1906). 

' '  The  general  rule,  resulting  from  considerations  as  well  of  justice 
as  of  policy,  is,  that  he  who  engages  in  the  employment  of  another 
for  the  performance  of  specified  duties  and  services,  for  compen- 
sation, takes  upon  himself  the  natural  and  ordinary  risks  and  perils 
incident  to  the  performance  of  such  services,  and,  in  legal  presump- 
tion, the  compensation  is  adjusted  accordingly."  —  Chief  Justice 
Shaw's  opinion  in  Farwell  vs.  Boston  and  Worcester  Railroad  Cor- 
poration, 4  Metcalf  49,  57  (Massachusetts,  1842). 

"All  the  ordinary  risks  incident  to  the  service  in  which  he  is 
about  to  engage  ....  entered  into  the  contemplation  of  the 
parties  in  making  the  contract;  on  account  of  which,  the  law  im- 
plies, the  servant  or  employee  has  insisted  upon  a  rate  of  compensa- 
tion which  would  indemnify  him  for  the  hazards  of  the  employ- 
ment. ' '  —  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company, 
11  Iowa  421,  423,  424  (1860). 


NOTES  AND  REFERENCES  273 

Compare  Bartonshill  Coal  Company  vs.  Reid,  3  Macqueen,  House 
of  Lords  266  (1858),  Lord  Cran worth's  opinion  at  p.  295. 

496  Smith's  The  Wealth  of  Nations,  Book  I,  Ch.  X. 

497  Webb's  Industrial  Democracy,  pp.  654-703. 

498  See  Fetter's  Principles  of  Economics,  Chs.  25-27;  Seligman's 
Principles  of  Economics,  Ch.  XXVII ;  Marshall's  Principles  of  Eco- 
nomics, Fifth  Edition,  Book  VI,  Chs.  III-V. 

499  See  Lewis's  State  Insurance,  p.  87,  and  authorities  there  cited. 
600  On  these  points  see  above,  pp.  6-8. 

501  An  expression  borrowed  from  Eastman's  Work  Accidents  and 
the  Law,  Ch.  XIII. 

502  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
p.  201. 

503  Report  of  the  Ohio  Employers'  Liability  Commission,  1911, 
Part  I,  p.  XLV. 

504  Eastman's  Work  Accidents  and  the  Law,  pp.  135-142. 

505  Report  of  the  Michigan  Employers'  Inability  and  Workmen's 
Compensation  Commission,  1911,  pp.  26,  30. 

506  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
p.  203. 

507  Report  of  the  Ohio  Employers'  Liability  Commission,  1911, 
Part  I,  p.  XLIV. 

508  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
pp.  183,  198,  199. 

509  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  32. 

510  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
pp.  198, 199. 

511  Baldwin  vs.  St.  Louis,  Keokuk  and  Northwestern  Railway  Com- 
pany, 63  Iowa  210  (1884)  ;  68  Iowa  37  (1885)  ;  72  Iowa  45  (1887)  ; 
75  Iowa  297  (1888). 


274  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

512  McGuire  vs.  Chicago,  Burlington  and  Quincy  Railroad  Com- 
pany, 131  Iowa  340  (1906)  ;  219  United  States  549  (1911). 

513  See  Labatt's  Employers'  Liability,  Preface,  p.  vii;  Report  of 
the  Illinois  Employers'  Liability  Commission,  1910,  pp.  196,  197; 
First  Report  of  the  New  York  Employers'  Liability  Commission, 
1910,  p.  33;  Report  of  the  Wisconsin  Select  Committee  on  Indus- 
trial Insurance,  1911,  Appendix  I;  Eastman's  Work  Accidents  and 
the  Law,  Ch.  XIII. 

514  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
p.  196. 

515  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  21. 

516  Twelfth  Biennial  Report  of  the  Minnesota  Bureau  of  Labor, 
1909-1910,  p.  156. 

517  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
pp.  198,  199. 

518  Report  of  the  Michigan  Employers'  Liability  and  Workmen's 
Compensation  Commission,  1911,  p.  17. 

519  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
p.  197. 

520  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  pp.  32,  33. 

521 ' '  Law  is  in  the  nature  of  a  cock-fight,  and  the  litigant  who 
wishes  to  succeed  must  try  and  get  an  advocate  who  is  a  game  bird 
with  the  best  pluck  and  the  sharpest  spurs ' '.  —  Manson,  in  the  Law 
Quarterly  Review,  Vol.  VIII,  p.  161. 

' '  The  common-law  theory  of  litigation  is  that  of  a  fair  fist  fight, 
according  to  the  canons  of  the  manly  art,  with  a  court  to  see  fair 
play  and  prevent  interference.  .  .  .  We  strive  in  every  way  to 
restrain  the  trial  judge  and  to  insure  the  individual  litigants  a  fair 
fight,  unhampered  by  mere  considerations  of  justice."  —  Pound's 
Do  We  Need  a  Philosophy  of  Law  in  the  Columbia  Law  Review, 
Vol.  V,  p.  347. 

Compare  Pollock's  The  Expansion  of  the  Common  Law,  p.  32. 


NOTES  AND  REFERENCES  275 

522  Of  every  one  hundred  industrial  accidents  fifteen  go  to  court, 
seven  are  lost  and  eight  Avon.  —  Boyd's  Workman's  Compensation, 
p.  10. 

523  Report  of  the  Wisconsin  Special  Committee  on  Industrial  In- 
surance, 1911,  Appendix  I,  Tables  A  and  B ;  Report  of  the  Illinois 
Employers'  Liability  Commission,  1910,  pp.  185,  186;  First  Report 
of  the  New  York  Employers'  Liability  Commission,  1910,  p.  31. 

524  See  symposium  on  The  Abuse  of  Personal  Injury  Litigation  in 
The  Green  Bag,  Vol.  XVIII,  pp.  193-215. 

It  is,  of  course,  true  that  the  ambulance  chaser,  and  the  host  of 
harpies  ancillary  to  him,  find  their  most  profitable  employment  in 
other  lines  of  personal  injury  cases.  Still,  the  evil  is  both  real  and 
serious  in  employers'  liability  practice.  —  Compare  Eastman's 
Work  Accidents  and  the  Law,  p.  191. 

525  Compiled  by  the  writer  from  data  given  in  First  Report  of  the 
New  York  Employers'  Liability  Commission,  1910,  pp.  29-31. 

The  plaintiffs'  attorney  fees  and  court  costs,  and  the  net  amount 
paid  to  plaintiffs  in  settlements  (out  of  court)  and  damages  (award- 
ed by  courts)  represent  estimates  made  by  the  Commission.  The 
other  amounts  are  from  actual  records  furnished  by  employers.  In 
computing  the  total  received  by  injured  workmen  and  their  de- 
pendents the  sums  paid  to  employees'  benefit  associations  are  re- 
garded as  actually  reaching  injured  employees,  whereas  it  is  well 
known  that  employers'  contributions  to  such  associations  are  prin- 
cipally used  to  defray  expenses  of  management,  the  benefits  paid 
being  raised  by  assessments  upon  employees. 

526  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  pp.  29-31. 

527  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  31. 

The  Commission  gives  only  the  total  collected  from  employers,  and 
the  amount  paid  in  settlements  and  damages.  The  amount  absorbed 
by  the  Companies  was  obtained  by  subtraction  and  the  amount  re- 
ceived by  plaintiffs'  attorneys  was  (roughly)  computed  by  the 
writer  on  the  basis  of  data  given  in  the  Report  on  p.  30.  The  last- 
mentioned  estimate  is  rather  below  than  above  the  true  figure. 


276  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

528  Report  of  the  Iowa  Employers'  Liability  Commission,  1912. 
529 Report  of  the  Iowa  Employers'  Liability  Commission,  1912. 

530  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  29,  and  testimony  of  Messrs.  Sherman,  Quackenbush, 
Ward,  and  Strong,  in  Minutes  of  Evidence,  accompanying  the  Re- 
port. 

531  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  35,  and  Appendix  XX. 

532  Eastman's  Work  Accidents  and  the  Law,  Ch.  XIII;  see  also 
Allport's  American  Railway  Relief  Funds  in  The  Journal  of  Politi- 
cal Economy  for  January  and  February,  1912. 

533  On  the  antagonism  bred  by  employers'  liability  see  First  Re- 
port of  the  New  York  Employers'  Liability  Commission,  1910,  pp. 
33,  34 ;  the  brief  of  H.  H.  Franklin,  printed  as  Appendix  V  of  the 
Report,  and  the  testimony  of  Messrs.  Cowles,  Brassmith,  Clark, 
Strong,  Stillwell,  Noyes,  Robinson  and  Parsons,  in  the  Minutes  of 
Evidence,  accompanying  the  Report;  Eastman's  Work  Accidents 
and  the  Law,  Ch.  XIII. 

534  Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  11 
Iowa  421,  423,  424  (1860). 

See  also  Chief  Justice  Shaw's  opinion  in  Farwell  vs.  Boston  and 
Worcester  Railroad  Corporation,  4  Metcalf  49,  57  (Massachusetts, 
1842),  and  other  authorities  quoted  in  note  227  above. 

535  Lord  Abinger's  opinion  in  Priestley  vs.  Fowler,  3  Meeson  and 
Welsby  1,  7  (England,  1837).  —  Irrelevant  portions  of  the  passage 
quoted  are  omitted  in  the  text. 

536  "^e  have  never  known  parties  more  willing  to  subject  them- 
selves to  dangers  of  life  or  limb  because,  if  losing  the  one  or  suffer- 
ing in  the  other,  damages  could  be  recovered  by  their  representatives 
or  themselves  for  their  loss  or  injury. ' '  —  Opinion  of  Mr.  Justice 
Field  in  Chicago  and  Milwaukee  Railway  Company  vs.  Ross,  112 
United  States  377,  383  (1884). 

1 '  We  do  not  think  it  likely  that  persons  would  be  careless  of  their 
lives  or  persons  and  property,  merely  because  they  might  have  a 
right  of  action  to  recover  for  what  damages  they  might  prove  they 


NOTES  AND  REFERENCES  277 

had  sustained. ' '  —  Little  Miami  Railroad  Company  vs.  Stevens,  20 
Ohio  416,  434  (1851). 

537  Downey's  History  of  Labor  Legislation  in  Iowa,  Chs.  IV-VI. 
Even  now  comparatively  little  railway  mileage  is  protected  by 

automatic  block  signals  although  the  practicability  and  the  superior 
safety  of  that  system  was  conclusively  demonstrated  years  ago.  — 
Twenty-fourth  Annual  Report  of  the  Interstate  Commerce  Commis- 
sion, 1910,  pp.  40,  180,  181. 

538  Shearman  and  Redfield  's  The  Law  of  Negligence,  Introduc- 
tion, p.  vii. 

539  Bulletin  of  the  United  States  Bureau  of  Labor,  No.  78,  p.  458. 

540  "It  is  neither  just,  expedient,  nor  humane;  it  is  revolting 
to  judgment  and  sentiment  alike  that  the  financial  burden  of  acci- 
dents occurring  because  of  the  necessary  exigencies  of  their  daily 
occupation  should  be  thrust  upon  those  sufferers  who  are  least  able 
to  bear  it.  .  .  .  When  the  employer  ....  starts  in  mo- 
tion agencies  which  create  risks  for  others,  he  should  take  all  the 
ordinary  and  extraordinary  risks  involved. ' '  —  Former  President 
Roosevelt's  Georgia  Day  Address  at  the  Jamestown  Exposition, 
quoted  in  The  Green  Bag,  Vol.  XIX,  p.  614. 

""When  he  has  yielded  up  life,  or  limb,  or  health  in  the  service  of 
that  marvellous  industrialism  which  is  our  boast,  shall  not  the  great 
public  for  whom  he  wrought  be  charged  with  the  duty  of  securing 
from  want  the  laborer  himself,  if  he  survive,  as  well  as  his  helpless 
and  dependent  ones  ? "  —  Opinion  of  Chief  Justice  Winslow,  in  Dris- 
coll  vs.  Allis  Chalmers,  129  Northwestern  401,  409  (Wisconsin, 
1911). 

541  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  p.  7. 

542  Report  of  the  Illinois  Employers'  Liability  Commission,  1910, 
p.  19. 

543  Proceedings  of  the  Fifteenth  Annual  Convention  of  the  Na- 
tional Association  of  Manufacturers,  1910,  p.  280. 

544  The  Survey,  April  8,  1911. 


278  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

545  The  Georgia  Day  Address  at  the  Jamestown  Exposition, 
quoted  by  Professor  Pound  in  The  Green  Bag,  Vol.  XIX,  p.  614. 

546  See  Labatt's  Employers'  Liability,  Preface  and  Sees.  61-66, 
470-475;  Shearman  and  Redfield's  The  Law  of  Negligence,  Intro- 
duction; Pound's  The  Need  of  a  Sociological  Jurisprudence  in  The 
Green  Bag,  Vol.  XIX,  p.  607;  Walton's  Workmen's  Compensation 
and  the  Theory  of  Professional  Risk  in  the  Columbia  Law  Review, 
Vol.  XI,  p.  36;  Warner's  Employers'  Liability  as  an  Industrial 
Problem  in  The  Green  Bag,  Vol.  XVIII,  p.  185;  and  the  article, 
signed  by  fourteen  teachers  of  constitutional  law  in  leading  uni- 
versities, in  The  Outlook,  July  29,  1911. 

Professor  Floyd  R.  Mechem,  of  the  University  of  Chicago,  in  the 
American  Law  Review,  Vol.  XLIV,  p.  221,  defends  the  unregenerate 
common  law,  including  even  the  fellow-servant  rule.  But  his  argu- 
ments proceed  wholly  on  the  natural  rights  pre-suppositions  of  a 
by-gone  generation  —  arguments  which  were  convincing  enough 
when  addressed  to  the  contemporaries  of  Chief  Justice  Shaw,  but 
which  convey  little  meaning  to  present-day  students  of  society. 

547  Seager's  Social  Insurance,  p.  53. 

548  See  below,  Ch.  IV. 

549  rpke  materials  for  this  chapter  are  mostly  taken  from  the  elabo- 
rate study  of  Workmen's  Insurance  and  Compensation  Systems  in 
Europe  in  the  Twenty-fourth  Annual  Report  of  the  United  States 
Commissioner  of  Labor;  Schwedtman  and  Emery's  Accident  Pre- 
vention and  Relief;  and  Frankel  and  Dawson's  Workingmen's  In- 
surance in  Europe. 

550  Compare  the  statement  of  the  theory  of  "professional  risk" 
in  Frankel  and  Dawson's  Workingmen's  Insurance  in  Europe,  p.  9. 

551  For  the  Swiss  law  see  Bundesgesetz  ilber  die  Kranken  und  Un- 
fallversicherung,  von  13  Juni,  1911,  Zweiter  Titel. 

552  See  the  Twenty-fourth  Annual  Report  of  the  United  States 
Commissioner  of  Labor,  Vol.  I,  Ch.  V;  and  Bulletin  of  the  United 
States  Bureau  of  Labor,  No.  96,  which  contains  the  Workmen's  In- 
surance Code  of  July  19,  1911. 

553  On  the  deferred  payments  question  see  Twenty-fourth  Annual 


NOTES  AND  REFERENCES  279 

Report  of  the  United  States  Commissioner  of  Labor,  under  ' '  sources 
of  income",  "financial  organization",  and  "risk  tariffs";  Schwedt- 
man  and  Emery's  Accident  Prevention  and  Relief,  Chs.  Ill  and 
VII;  Frankel  and  Dawson's  Workingmen's  Insurance  in  Europe, 
pp.  112,  113. 

554  Estimates  by  competent  authorities  of  the  contributions  of 
workmen  to  accident  relief  range  from  eight  to  seventeen  per  cent. 

See  the  Twenty-fourth  Annual  Report  of  the  United  States  Com- 
missioner of  Labor,  p.  999;  and  Schwedtman  and  Emery's  Accident 
Prevention  and  Relief,  p.  57. 

555  See  Schwedtman  and  Emery's  Accident  Prevention  and  Re- 
lief, pp.  45-50. 

556  See  Dawson  in  The  Annals  of  the  American  Academy,  Vol. 
XXXVIII,  p.  175. 

557  Frankel  and  Dawson's  Workingmen's  Insurance  in  Europe, 
p.  46 ;  Brief  of  Miles  M.  Dawson  in  Hearings  before  the  United 
States  Employers'  Liability  and  Workmen's  Compensation  Com- 
mission, Senate  Document  No.  90,  Vol.  II,  pp.  249-255,  Sixty-second 
Congress,  1st  Session. 

558  Twenty-fourth  Annual  Report  of  the  United  States  Commis- 
sioner of  Labor,  Vol.  I,  pp.  1095-1101.  In  the  text  additions  to 
reserve  fund  are  counted  as  part  of  the  sum  going  ultimately  to  the 
insured  while  expenditures  for  accident  prevention  are  deducted 
from  administrative  expenses. 

559  Compare  Schwedtman  and  Emery's  Accident  Prevention  and 
Relief,  Chs.  XI  and  XIII. 

560  See  Schwedtman  and  Emery's  Accident  Prevention  and  Re- 
lief; Frankel  and  Dawson's  Workingmen's  Insurance  in  Europe; 
Zacher's  Die  Arbeiter — Verischerung  nach  ihren  Systemen;  Daw- 
son's The  German  Workman;  Pinkus's  Workmen's  Insurance  in 
Germany;  and  the  brief  submitted  by  Miles  M.  Dawson  to  the 
United  States  Employers'  Liability  and  Workmen's  Compensation 
Commission,  Senate  Document,  No.  90,  Vol.  II,  pp.  240-257,  Sixty- 
second  Congress,  1st  Session. 

561  See  the  Twenty-fourth  Annual  Report  of  the  United  States 
Commissioner  of  Labor,  Vol.  II,  pp.  2046,  2047. 


280  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

562  Commissions  Appointed  Reported 

1.  Colorado  19  H 

2.  Connecticut  19H 

3.  Delaware  1911 

4.  Illinois  1910  1910 

5.  Iowa  1911  1912 

6.  Louisiana  1912 

7.  Maine  1911 

8.  Maryland  1911 

9.  Massachusetts  1910  1911 

10.  Michigan  1911  1911 

11.  Minnesota  1909  1911 

12.  Missouri  1911 

13.  Nebraska  1911 

14.  New  Jersey  1911  1911 

15.  New  York  1909  1910 

16.  North  Dakota  1911 

17.  Ohio  1910  1911 

18.  Oklahoma  1911 

19.  Pennsylvania  1911 

20.  Texas  1911 

21.  United  States  1910  1912 

22.  Washington  1910  1910 

23.  West  Virginia  1911 

24.  Wisconsin  1909  1911 

563  Statutes  have  been  enacted  as  follows : 

1.  Arizona,  June  8,  1912. 

2.  California,  April  8,  1911. 

3.  Illinois,  June  5,  1911. 

4.  Kansas,  March  14,  1911. 

5.  Maryland,  April  15,  1912. 

6.  Massachusetts,  July  28,  1911. 

7.  Michigan,  March  20,  1912. 

8.  Montana,  March  4,  1909. 

9.  Nevada,  March  24,  1911. 

10.  New  Hampshire,  April  15,  1911. 

11.  New  Jersey,  April  4,  1911. 

12.  New  York,  May  24,  June  25,  1912. 

13.  Ohio,  June  15,  1911. 

14.  Rhode  Island,  April  29,  1912. 

15.  Washington,  March  14,  1911. 

16.  Wisconsin,  May  3, 1911. 

564  California,  Colorado,  Connecticut,  Illinois,  Iowa,  Kansas, 
Maine,  Maryland,  Massachusetts,  Michigan,  Missouri,  Nebraska, 
Nevada,  New  Hampshire,  New  Jersey,  North  Dakota,  Ohio,  Okla- 
homa, Pennsylvania,  Texas,  Washington,  West  Virginia,  Wisconsin. 


NOTES  AND  REFERENCES  281 

565  Illinois  and  Ohio.  The  investigations  in  New  York,  Minnesota, 
and  Wisconsin  were  conducted  by  persons  of  proven  competence. 

56(5  Illinois,  Iowa,  Massachusetts,  Minnesota,  New  York,  Ohio,  and 
the  Federal  Commission. 

567  The  bill  actually  presented  was  a  compromise  to  which  neither 
the  labor  nor  the  employers'  members  fully  agreed. 

ses  jyjr   Baidwin  presented  a  minority  report. 

569  A  definitive  report  of  the  Maryland  Commission  has  not,  up  to 
the  present  time  (October,  1912)  been  made.  About  a  dozen  bills 
were  introduced  in  the  1912  session  of  the  legislature,  some  of  them 
by  members  of  the  Commission. 

570  Two  commissioners  signed  one  insurance  bill ;  the  other  bills 
were  signed  by  one  commissioner  each.  One  member  was  abroad 
when  the  report  was  made  and  one  protested  against  enacting  any 
legislation  without  further  study. 

571  Two  labor  members  objected  to  the  maximum  death  compensa- 
tion fixed  by  the  proposed  bill  but  concurred  as  to  the  plan  itself. 

572  Twelve  members  signed  the  report ;  one  protested  against  legis- 
lation without  further  study. 

573  Mr.  Wirrans  submitted  a  minority  report,  which  became  the 
basis  of  the  law  enacted. 

574  Arizona,  California,  Kansas,  Montana,  Nevada,  New  Hamp- 
shire, Rhode  Island. 

575  Massachusetts,  Montana,  Ohio,  Washington. 

576  Laws  of  California,  1911,  Ch.  399,  Sec.  3  (3)  —"wilful  mis- 
conduct of  the  employee";  Workmen's  Compensation  Act  of  Kan- 
sas, 1911,  Sec.  1  —  "deliberate  intention  to  cause  such  injury", 
"wilful  failure  to  use  a  guard  or  protection",  "deliberate  breach 
of  statutory  regulations",  or  intoxication;  Workmen's  Compensa- 
tion and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec.  8  —  "de- 
liberate intention  to  cause  such  injury";  Acts  and  Resolves  of 
Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  2  —  "serious  and  wilful 
misconduct";  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  3  —  "intoxi- 
cation", "wilful  and  deliberate  act",  or  "deliberate  intention  to 


282  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

produce  such  injury";  Workmen's  Compensation  and  Employers' 
Liability  Acts  of  Michigan,  Part  II,  Sec.  2  —  "  intentional  and  wil- 
ful misconduct";  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  3  — 
"intoxication,  violation  of  law  or  serious  or  wilful  misconduct"; 
Laws  of  New  Jersey,  1911,  Ch.  95,  Sees.  1,  7  —  wilful  negligence, 
intoxication;  Laws  of  New  York,  1910,  Ch.  674,  Sec.  217  (b)  — 
' '  serious  and  wilful  misconduct ' ' ;  102  Ohio  Laws,  524,  Sec.  21  — 
"purposely  self-inflicted";  Workmen's  Compensation  and  Em- 
ployers' Liability  Acts  of  Rhode  Island,  1912,  Art.  II,  Sec.  2  —  wil- 
ful intention  to  bring  about  injury  or  death,  or  intoxication; 
Laws  of  Washington,  1911,  Ch.  74,  Sec.  6  —  "deliberate  intention" 
to  produce  injury  or  death;  Revised  Statutes  of  Wisconsin,  Sec. 
2394-4,  3  —  "  wilful  misconduct ' '. 

Nevada  establishes  the  rule  of  proportional  negligence,  even  as 
to  injuries  within  the  Compensation  Act.  —  Laws  of  Nevada,  1911, 
Ch.  183,  Sec.  1. 

577  Laws  of  California,  1911,  Ch.  399,  Sec.  3  (3);  Workmen's 
Compensation  Act  of  Kansas,  1911,  Sec.  2;  Workmen's  Compensa- 
tion and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec.  3;  Acts 
and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  3 ;  Laws 
of  New  Hampshire,  1911,  Ch.  163,  Sec.  3 ;  102  Ohio  Laws  524,  Sec. 
21-2 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  9 ;  Laws  of  Maryland, 
1912,  Ch.  837,  Sec.  15. 

578  Laws  of  Montana,  1909,  Ch.  67. 

579  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  3;  Workmen's  Compensation  and  Employers' 
Liability  Acts  of  Illinois,  1911,  Sec.  2;  Workmen's  Compensation 
Act  of  Kansas,  1911,  Sec.  6 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec  3 ; 
Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  1 ;  Laws  of  New  York, 
1910,  Ch.  674,  Sec.  215 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  2. 

580  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  I,  Sec. 
2;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  I,  Sec.  2;  Workmen's  Compensation  and  Em- 
ployers' Liability  Acts  of  Rhode  Island,  1912,  Art.  I,  Sec.  2. 

581 102  Ohio  Laws,  Sees.  20-1,  21-1;  Workmen's  Compensation 


NOTES  AND  REFERENCES  2s3 

and  Employers'  Liability  Acts  of  Rhode  Island,  1912,  Art.  I,  Sec.  3 ; 
Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  8. 

582  Laws  of  California,  1911,  Sees.  1,  4 ;  Laws  of  Maryland,  1912, 
Ch.  837,  Sec.  1 ;  Laws  of  New  Jersey,  1911,  Ch.  95,  Sec.  1 ;  Revised 
Statutes  of  Wisconsin,  Sec.  2394-1. 

58SLaws  of  California,  1911,  Ch.  399,  Sees.  4,  6  (1)  ;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Michigan,  1911, 
Sec.  5,  (1);  Laws  of  Washington,  1911,  Ch.  74,  Sec.  17;  Revised 
Statutes  of  Wisconsin,  Sec.  2394-5,  2394-7,  1. 

584  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  1 ;  Laws  of  Nevada, 
1911,  Ch.  183,  See.  2 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  3 ;  102 
Ohio  Laws  524,  Sec.  20-1. 

585  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sees.  2  and  14 ;  Laws  of  Montana,  1909,  Ch.  67,  Sec. 
1  —  "All  workmen,  laborers  and  employees  ....  except  of- 
fice employees,  superintendents  and  general  managers";  Laws  of 
New  Hampshire,  1911,  Ch.  163,  Sec.  1 ;  Laws  of  New  York,  1910,  Ch. 
674,  Sec.  215. 

586  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  21. 

587  Laws  of  California,  1911,  Ch.  399,  Sec.  6  (2)  —  "not  including 
any  person  whose  employment  is  but  casual  and  not  in  the  usual 
course"  of  the  business;  Workmen's  Compensation  and  Employers' 
Liability  Acts  of  Illinois,  1911,  Sec.  22  —  "work  of  an  incidental 
character  unconnected  with  the  dangers  necessarily  involved  in 
carrying  on"  any  of  the  enumerated  employments;  Workmen's 
Compensation  Act  of  Kansas,  1911,  Sec.  9  (i) — "workman  .  .  .  . 
does  not  include  a  person  who  is  employed  otherwise  than  for  the 
purpose  of  the  employer's  trade  or  business";  Acts  and  Resolves  of 
Massachusetts,  1911,  Ch.  751,  Part  V,  Sec.  2  —  "except  one  whose 
employment  is  but  casual,  or  is  not  in  the  usual  course ' '  of  the  busi- 
ness; Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  I,  Sec.  7-2  —  identical  with  Massachusetts 
act;  Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraph  23  —  "exclusive 
of  casual  employments";  Workmen's  Compensation  and  Employ- 
er's Liability  Acts  of  Rhode  Island,  1912,  Art.  V,  Sec.  1  (b)  —  "em- 


284  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ployee  ....  does  not  include  a  person  whose  employment  is 
of  a  casual  nature,  and  who  is  employed  otherwise  than  for  the  pur- 
pose of  the  employers'  trade  or  business";  Revised  Statutes  of 
Wisconsin,  Sec.  2394-7,  2  —  identical  with  Massachusetts  act. 

sss  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Rhode  Island,  1912,  Art.  V,  Sec.  1  (b). 

589  Laws  of  New  York,  1911,  Ch.  674,  Sec.  217.  The  language  of 
the  Arizona,  California,  Kansas,  Illinois,  Massachusetts,  Michigan, 
Nevada,  New  Hampshire,  New  Jersey,  and  Rhode  Island  acts  is  sub- 
stantially the  same. 

590Ruegg's  Employers'  Liability  and  Workmen's  Compensation, 
Eighth  Edition,  Chs.  II  and  III,  especially  pp.  308,  309,  339. 

591  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  1  —  "accident  occurring 
in  the  course  of  employment";  102  Ohio  Laws  524,  Sec.  21  —  "in- 
jured in  the  course  of  their  employment";  Laws  of  Washington, 
1911,  Ch.  74,  Sec.  5  —  "injured  ....  in  the  course  of  his 
employment";  Revised  Statutes  of  Wisconsin,  Sec.  2394-4-2  — 
"where,  at  the  time  of  the  accident,  the  employee  is  performing 
service  growing  out  of  and  incidental  to  his  employment." 

592  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  4;  Work- 
men's Compensation  and  Employers'  Liability  Acts  of  Illinois,  1911, 
Sec.  20 ;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  III, 
Sec.  17 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  10 ;  Laws  of  New  York, 
1911,  Ch.  674,  Sec.  219-g.  The  provisions  of  the  several  acts  differ 
considerably. 

593  Laws  of  Washington,  1911,  Ch.  74,  Sec.  17. 

594  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sees.  1  and  2 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  1 ; 
Laws  of  New  York,  1910,  Ch.  674,  Sec.  217 ;  Laws  of  Washington, 
1911,  Ch.  74,  Sec.  1. 

595  Laws  of  Washington,  1911,  Ch.  74,  Sec.  6. 

596  Laws  of  California,  1911,  Ch.  399,  Sec.  6  (1),  7;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Michigan,  1912, 
Part  I,  Sees.  7-1,  8;  Revised  Statutes  of  Wisconsin,  Sec.  2394-7,  8. 


NOTES  AND  REFERENCES  285 

597  Laws  of  California,  1911,  Ch.  399,  Sec.  3;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec. 
1;  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  47;  Acts 
and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  I,  Sec.  3 ;  Work- 
men's Compensation  and  Employers'  Liability  Act  of  Michigan, 
1912,  Part  I,  Sec.  3 ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  3 ; 
Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraph  7 ;  102  Ohio  Laws  534, 
Sec.  20-1;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Rhode  Island,  1912,  Art.  I,  Sec.  4 ;  Revised  Statutes  of  Wisconsin, 
Sec.  2394-1. 

59SLaws  of  California,  1911,  Ch.  399,  Sec.  1  (1),  (2)  ;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec. 
1-1,  -2;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  I,  Sec.  1,  (b),  (c)  ;  Laws  of  New  Hampshire, 
1911,  Ch.  163,  Sec.  2 ;  Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraph 
2;  102  Ohio  Laws  524,  Sec.  21-1;  Workmen's  Compensation  and 
Employers'  Liability  Acts  of  Rhode  Island,  1912,  Art.  I,  Sec.  1  (b), 
(e)  ;  Revised  Statutes  of  Wisconsin,  Sec.  2394-1,  1,  2. 

599  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  I,  Sec. 
1-1;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  I,  Sec.  1  (a)  ;  Laws  of  New  Jersey,  1911,  Ch. 
95,  Paragraph  1;  102  Ohio  Laws  524,  Sec.  21-1;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Rhode  Island,  1912,  Art. 
I,  Sec.  1  (a). 

600  Laws  of  California,  1911,  Ch.  399,  Sec.  1  —  proportional  negli- 
gence; Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  1-3  —  proportional  negligence;  Workmen's  Com- 
pensation Act  of  Kansas,  1911,  Sec.  46  (c)  — 'proportional  negli- 
gence ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  2  —  defendant 
has  the  burden  of  proof  to  show  contributory  negligence. 

601  Laws  of  California,  1911,  Ch.  399,  Sec.  5 ;  Workmen's  Compen- 
sation Act  of  Kansas,  1911,  Sec.  44 ;  Acts  and  Resolves  of  Massachu- 
setts, 1911,  Ch.  751;  Part  IV;  Workmen's  Compensation  and  Em- 
ployers' Liability  Acts  of  Michigan,  1912,  Part  I,  Sec.  6;  Laws  of 
New  Hampshire,  1911,  Ch.  163,  Sec.  3 ;  102  Ohio  Laws  524,  Sec.  20-1 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Rhode 


286  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Island,  1912,  Art.  I,  Sec.  6;  Revised  Statutes  of  Wisconsin,  Sec. 
2394-6. 

602  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  1,  b;  Laws  of  New  Jersey,  1911,  Ch.  95,  Para- 
graphs 7-10. 

603  Laws  of  California,  1911,  Ch.  399,  Sec.  7  (2)  ;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec.  1,  c; 
Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  45;  Acts  and 
Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  I,  Sec.  5;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Michigan,  1912, 
Part  I,  Sec.  8-2 ;  Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraphs  7-10 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Rhode 
Island,  1912,  Art.  I,  Sec.  6;  Revised  Statutes  of  Wisconsin,  Sec. 
2394-8-2. 

The  mode  of  election  differs  considerably,  some  States  requiring 
the  employee  to  elect  at  the  time  of  hiring,  or,  if  already  employed, 
within  a  specified  period  after  the  act  became  operative ;  while  other 
States  permit  election  so  many  days  before  an  injury  is  sustained. 
Rhode  Island  requires  notice  to  the  Commissioner  of  Industrial 
Statistics  as  well  as  to  the  employer.  In  a  number  of  States  the 
employee  is  presumed  to  have  notice  of  his  employer's  election;  in 
others  notice  must  be  posted  in  the  place  of  employment. 

604  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  3. 

605 102  Ohio  Laws  524,  Sec.  20-1. 

ooe  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1911,  Sec.  4;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  11 ;  Laws 
of  New  York,  1910,  Ch.  674,  Sec.  218 ;  Laws  of  Montana,  1909,  Sec. 
11. 

607  Laws  of  California,  1911,  Ch.  399,  Sec.  3(3);  Workmen's  Com- 
pensation and  Employer's  Liability  Acts  of  Illinois,  1911,  Sec.  3; 
Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  2;  Laws  of 
New  Hampshire,  1911,  Ch.  74,  Sec.  3 ;  102  Ohio  Laws  524,  Sec.  21-2. 

608  Laws  of  Maryland,  1912,  Ch.  837 ;  Laws  of  New  York,  1910, 
Ch.  352. 

609  Laws  of  California,  1911,  Ch.  399,  Sec.  8(1);  Workmen's  Com- 


NOTES  AND  REFERENCES  287 

pensation  and  Employers'  Liability  Acts  of  Illinois,  1911,  Sec.  5,  a; 
Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  5 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Michi- 
gan, 1912,  Part  II,  Sec.  4;  Laws  of  New  Jersey,  1911,  Ch.  95,  Para- 
graph 14;  102  Ohio  Laws  524,  Sec.  23;  Workmen's  Compensation 
and  Employers'  Liability  Acts  of  Rhode  Island,  Art.  II,  Sec.  5; 
Revised  Statutes  of  Wisconsin,  Sec.  2394-9-1. 

The  Montana  act  permitted  the  Auditor  of  State  to  grant  medical 
relief  when  needed.  —  Laws  of  Montana,  1909,  Ch.  67,  Sec.  5. 

6io  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  8-3 ;  Laws  of  California,  1911,  Ch.  399,  Sec.  8, 
(3),  (d)  ;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Illinois,  1911,  Sec.  4,  c;  Workmen's  Compensation  Act  of  Kansas, 
1911,  Sec.  11,  (a),  (3)  ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5,  (c)  ; 
Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  741,  Part  II,  Sec.  8 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Michi- 
gan, 1912,  Part  II,  Sec.  8 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  5, 
(c)  ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  6,  (1),  (c)  ;  Laws 
of  New  Jersey,  1911,  Ch.  95,  Paragraph  12,  (2)  ;  Laws  of  Neiv  York, 

1910,  Ch.  674,  Sec.  219-a,  (c)  ;  102  Ohio  Laws  524,  Sec.  24;  Work- 
men's Compensation  and  Employers'  Liability  Acts  of  Rhode  Is- 
land, 1912,  Art.  II,  Sec.  9 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec. 
5,  (a)  ;  Revised  Statutes  of  Wisconsin,  Sec.  2394-9-3,  (d). 

en  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  8-3;  Laws  of  California,  1911,  Ch.  399,  Sec.  8, 
(3),  (a)  ;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Illinois,  Sec.  4,  a;  Workmen's  Compensation  Act  of  Kansas,  Sec. 
11,  (a),  (1)  ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5,  (1),  (a)  ; 
Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  6 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Michi- 
gan, 1912,  Part  II,  Sec.  5;  Laws  of  Montana,  1909,  Ch.  67,  Sec.  5; 
Laws  of  Nevada,  1911,  Ch.  183,  Sec.  5,  (a)  ;  Laws  of  New  Hampshire, 

1911,  Ch.  163,  Sec.  6,  (1),  (a)  ;  Laws  of  New  Jersey,  1911,  Ch.  95, 
Sec.  12,  (1)  ;  Laics  of  New  York,  1910,  Ch.  674,  Sec.  219-a,  (a)  ;  102 
Ohio  Laws  524,  Sec.  28-2;  Workmen's  Compensation  and  Employ- 
ers' Liability  Acts  of  Rhode  Island,  Art.  II,  Sec.  6;  Laws  of  Wash- 


288  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ington,  1911,  Ch.  74,  Sec.  5,  (a)  ;  Revised  Statutes  of  Wisconsin, 
See.  2394-9-3,  (a). 

612  One-half  of  weekly  wages  for  300  weeks. 

613  One-half  of  weekly  wages  for  300  weeks. 

614  One  hundred  and  fifty  times  average  weekly  wages. 

615  One-half  of  weekly  wages  for  300  weeks. 

sis  Twenty-four  hundred  times  one-half  the  daily  wages. 

617  Twelve  hundred  times  the  daily  earnings. 

618  Two-thirds  of  average  weekly  wages  for  six  years. 

619  Arizona,  Maryland,  Montana,  Nevada,  New  Hampshire,  New 
York,  and  Rhode  Island.  See  citations  in  note  611  above.  In  most 
of  these  States  a  court  may,  in  its  discretion,  order  that  payments 
be  made  in  installments. 

620  In  California,  Massachusetts,  Michigan,  Ohio,  Washington,  and 
Wisconsin  commutations  can  be  made  only  by,  or  with  the  approval 
of,  the  State  boards  charged  with  the  administration  of  accident 
compensation  or  insurance.  In  Illinois,  New  Jersey,  and  Rhode 
Island  pensions  are  commutable  by  courts  of  appropriate  jurisdic- 
tion. —  Laws  of  California,  1911,  Ch.  399,  Sec.  8,  (3),  (a)  ;  Work- 
men's Compensation  and  Employers'  Liability  Acts  of  Illinois,  1911, 
Sec.  51/2 ;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II, 
Sec.  22;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Michigan,  1912,  Part  II,  Sec.  22 ;  Laws  of  New  Jersey,  1911,  Ch. 
95,  Paragraph  21 ;  102  Ohio  Laws  524,  Sec.  34;  Workmen's  Compen- 
sation and  Employers'  Liability  Acts  of  Rhode  Island,  1911,  Art. 
II,  See.  25 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  7 ;  Revised  Stat- 
utes of  Wisconsin,  Sec.  2394-9-3,  (a). 

621  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  8 ;  Laws  of  California,  1911,  Ch.  399,  Sec.  8,  (2)  ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illi- 
nois, 1911,  Sec.  5;  Workmen's  Compensation  Act  of  Kansas,  1911, 
Sec.  11 ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5 ;  Acts  and  Resolves 
of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  9;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Michigan,  1912,  Part  II, 
Sec.  9 ;  Laws  of  Montana,  Ch.  67,  Sec.  5 ;  Laws  of  Nevada,  1911,  Ch. 


NOTES  AND  REFERENCES  289 

183,  Sec.  6;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  6  (2)  ; 
Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraph  11 ;  Laws  of  New  York, 

1910,  Ch.  674,  Sec.  219-a,  2 ;  102  Ohio  Laws  524,  Sec.  27  ;  Workrm  n  'a 
Compensation  and  Employers*  Liability  Acts  of  Rhode  Island,  1912, 
Art.  II,  Sec.  10;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  2,  (b)  ;  B< 
vised  Statutes  of  Wisconsin,  Sec.  2394-9-2,  (a). 

622  Five  hundred  weeks  in  Massachusetts,  Michigan  and  Rhode 
Island. 

623  Four  hundred  weeks. 

624  Three  hundred  weeks. 

625  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  8-2;  Laws  of  California,  1911,  Ch.  399,  Sec.  8, 
(2),  (b)  ;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Illinois,  1911,  Sec.  5,  d;  Workmen's  Compensation  Act  of  Kansas, 

1911,  Sec.  11,  (3),  (c)  ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5, 
(III)  ;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II, 
Sec.  10;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Michigan,  1912,  Part  II,  Sec.  10 ;  Laws  of  Nevada,  1911,  Ch.  183, 
Sec.  6,  (a)  ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  6  (2)  ; 
Laws  of  New  Jersey,  1911,  Ch.  95,  Sec.  11,  (c)  ;  Laws  of  New  York, 
1910,  Ch.  674,  Sec.  219-a,  2 ;  102  Ohio  Laws  524,  Sec.  26;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Rhode  Island,  1912, 
Art.  II,  Sec.  11;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  5,  (f)  ; 
Revised  Statutes  of  Wisconsin,  Sec.  2394-9,  (b). 

626  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5  (III)  ;  Workmen's 
Compensation  and  Employers'  Liability  Acts  of  Michigan,  1912, 
Part  II,  Sec.  10;  Laws  of  New  Jersey,  1911,  Ch.  95,  Sec.  11,  (c)  ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Rhode 
Island,  1912,  Art.  II,  Sec.  12;  Laws  of  Washington,  1911,  Ch.  74, 
Sec.  5,  (f). 

627  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  5,  c;  Acts  and  Resolves  of  Massachusetts,  1911, 
Ch.  751,  Part  II,  Sec.  11 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  6,  (b). 

628  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  8-1;  Laws  of  California,  1911,  Ch.  399,  Sec.  8, 
(2)  ;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 


290  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Illinois,  1911,  Sec.  5,  b;  Workmen's  Compensation  Act  of  Kansas, 
1911,  Sec.  11,  (3),  (b)  ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  5, 
(III)  ;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II, 
Sec.  4;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  II,  Sec.  3 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec. 
6,  (a)  ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  6,  (2)  ;  Laws 
of  New  Jersey,  1911,  Ch.  95,  Sec.  13 ;  Laws  of  New  York,  1910,  Ch. 
674,  Sec.  219-a,  2 ;  102  Ohio  Laws,  524,  Sec.  25 ;  Workmen's  Compen- 
sation and  Employers'  Liability  Acts  of  Rhode  Island,  1912,  Art. 
II,  Sec.  4;  Revised  Statutes  of  Wisconsin,  Sec.  2394-9-2;  Laws  of 
Montana,  1909,  Ch.  67,  Sec.  5. 

629  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  9;  Laws  of  California,  1911,  Ch.  399,  Sec.  11; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illinois, 
1911,  Sec.  9;  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec. 
17 ;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec. 
19;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  II,  Sec.  19 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec. 
7 ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  7 ;  Laws  of  New  Jer- 
sey, 1911,  Ch.  95,  Paragraph  17 ;  Laws  of  New  York,  1910,  Ch.  674, 
Sec.  219-b ;  Workmen's  Compensation  and  Employers'  Liability  Acts 
of  Rhode  Island,  Art.  II,  Sec.  21 ;  Laws  of  Washington,  1911,  Ch. 
74,  Sec.  13 ;  Revised  Statutes  of  Wisconsin,  Sec.  2394-12. 

630  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  12 ;  Laws  of  California,  1911,  Ch.  399,  Sec.  22 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illinois, 
1911,  Sec.  11;  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec. 
15 ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  14 ;  Acts  and  Resolves  of 
Massachusetts,  1911,  Ch.  751,  Part  II,  Sec.  21;  Workmen's  Compen- 
sation and  Employers'  Liability  Acts  of  Michigan,  1912,  Part  II, 
Sec.  21;  Coal  Miners'  Insurance  Act  of  Montana,  1909,  Sec.  131 
(11)  ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  10 ;  Laws  of  New 
Jersey,  1911,  Ch.  95,  Paragraph  22 ;  Laws  of  New  York,  1910,  Ch. 
674,  Sec.  219-b;  102  Ohio  Laws  524,  Sec.  35;  Workmen's  Compensa- 
tion and  Employers'  Liability  Acts  of  Rhode  Island,  1912,  Art.  II, 
Sec.  23 ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  10 ;  Revised  Stat- 
utes of  Wisconsin,  Sec.  2394-23. 


NOTES  AND  REFERENCES  291 

63i  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  2;  Laws  of  California,  1911,  Ch.  399,  Sec.  3; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illinois, 

1911,  Sec.  1;  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec. 
1 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  1 ;  Laws  of  New  Jersey,  1911, 
Ch.  95,  Sec.  II ;  Laws  of  New  York,  1910,  Ch.  674,  Sec.  200 ;  Work- 
men's Compensation  and  Employers'  Liability  Acts  of  Rhode  Island, 

1912,  Art.  II,  Sec.  1 ;  Revised  Statutes  of  Wisconsin,  Sec.  2394-4. 

e32Laws  of  California,  1911,  Ch.  399,  Sec.  24;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Illinois,  1911,  Sees.  15, 
16;  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  34;  Revised 
Statutes  of  Wisconsin,  Sec.  2394-26,  -27. 

633  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  12;  Laws  of  California,  1911,  Ch.  399,  Sec.  23; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illinois, 
1911,  Sec.  11 ;  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  12 ;  Laws  of  New 
Jersey,  1911,  Ch.  95,  Paragraph  22 ;  Laws  of  New  York,  1910,  Ch. 
674,  Sec.  219-e;  Workmen's  Compensation  and  Employers'  Liability 
Acts  of  Rhode  Island,  1912,  Art.  II,  Sec.  24;  Revised  Statutes  of 
Wisconsin,  Sec.  2394-24. 

634  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  3. 

635  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  IV. 

636  Workmen's  Compensation  and.  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  V. 

637  Laws  of  Michigan,  1912,  House  Enrolled  Act,  Number  5. 

638  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  IV. 

639  Laws  of  Montana,  1909,  Ch.  67. 

640 102  Ohio  Laws  524 ;  Laws  of  Washington,  1911,  Ch.  74. 
641  Laws  of  Maryland,  1912,  Ch.  837. 
642 102  Ohio  Laws  524,  Sec.  20-2. 

643  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  6. 

644  Laws  of  Montana,  1909,  Ch.  67,  Sec.  2. 


292  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

645  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  14;  Workmen's  Compensation  Act  of  Kansas, 
1911,  Sec.  39;  Workmen's  Compensation  and  Employers'  Liability 
Acts  of  Illinois,  1911,  Sec.  15;  Workmen's  Compensation  and  Em- 
ployers' Liability  Acts  of  Rhode  Island,  1912,  Art.  IV. 

646  Laws  of  California,  1911,  Ch.  399,  Sec.  24;  Revised  Statutes  of 
Wisconsin,  Sec.  2394-26. 

647  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  II,  Sec. 
12;  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Michigan,  1912,  Part  II,  Sec.  13 ;  Workmen's  Compensation  and  Em- 
ployers' Liability  Acts  of  Rhode  Island,  Art.  II,  Sec.  14. 

648  Laws  of  California,  1911,  Ch.  399,  Sees.  12-18,  27 ;  Acts  and  Re- 
solves of  Massachusetts,  1911,  Ch.  751,  Part  III;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Michigan,  1912,  Part 
III ;  102  Ohio  Laws  524,  passim. 

649  Laws  of  Montana,  1909,  Ch.  67. 

650  Laws  of  New  Jersey,  1911,  Ch.  241. 

65i  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  19;  Workmen's  Compensation  Act  of  Kansas, 
1911,  Sec.  16 ;  Laws  of  New  Hampshire,  1911,  Ch.  163,  Sec.  12. 

652  Laws  of  Maryland,  1912,  Ch.  837,  Sees.  16,  17,  18. 

653  Workmen's  Compensation  and  Employers'  Liability  Acts  of 
Illinois,  1911,  Sec.  19;  Workmen's  Compensation  Act  of  Kansas, 
1911,  Sec.  16;  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751, 
Part  III,  Sec.  18;  Employers'  Liability  and  Workmen's  Compensa- 
tion Acts  of  Michigan,  1912,  Part  III,  Sec.  17 ;  Laws  of  New  Jersey, 
1911,  Ch.  241,  Sec.  2;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  14; 
Laws  of  Wisconsin,  1911,  Ch.  469. 

654  Workmen's  Compensation  and  Employers'  Liability  Act  of 
Arizona,  1912,  Sec.  11 ;  Laws  of  California,  1911,  Ch.  399,  Sees.  15-21 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Illinois, 
1911,  Sees.  10,  11;  Workmen's  Compensation  Act  of  Kansas,  1911, 
Sees.  23-38 ;  Laws  of  Maryland,  1912,  Ch.  837,  Sec.  13 ;  Acts  and  Re- 
solves of  Massachusetts,  1911,  Ch.  751,  Part  III;  Workmen's  Com- 
pensation and  Employers'  Liability  Acts  of  Michigan,  1912,  Part 


NOTES  AND  REFERENCES  293 

III;  Laws  of  Montana,  1909,  Ch.  67,  Sec.  10  [130]  ;  Laws  of  Nevada, 
1911,  Ch.  183,  Sees.  8,  9;  Laws  of  New  Hampshire,  1911,  Ch.  163, 
Sec.  9;  Laws  of  New  Jersey,  1911,  Ch.  95,  Paragraphs  18,  20;  Laws 
of  New  York,  1910,  Ch.  674,  Sec.  219-d ;  102  Ohio  Laws  524,  Sec.  36 ; 
Workmen's  Compensation  and  Employers'  Liability  Acts  of  Rhode 
Island,  1912,  Art.  Ill ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  20 ; 
Revised  Statutes  of  Wisconsin,  Sees.  2394-15-22. 

655  This  is  not  the  language  of  the  statute  but  such  is  the  interpre- 
tation placed  upon  Section  20  by  the  Industrial  Insurance  Commis- 
sion. —  See  Workmen's  Compensation  Act  of  the  State  of  Washing- 
ton, issued  by  the  Industrial  Insurance  Commission,  January,  1912, 
p.  32,  note. 

656  Cunningham  vs.  Northwestern  Improvement  Company,  119 
Pacific  554  (Montana,  1911). 

657  Ives  vs.  South  Buffalo  Railway  Company,  201  New  York  271 
(1911). 

658  Opinion  of  the  Justices,  96  Northeastern  308  (Massachusetts, 
1911). 

659  State  ex  rel.  Yaple  vs.  Craemer,  97  Northeastern  602  (Ohio, 
1912). 

660  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101  (Wash- 
ington, 1911). 

661  Borgnis  et  al.  vs.  Falk  Company,  133  Northwestern  209  (Wis- 
consin, 1911). 

662  "-\Ynen  our  Constitutions  were  adopted  it  was  the  law  of  the 
land  that  no  man  who  was  without  fault  or  negligence  could  be  held 
liable  in  damages  for  injuries  sustained  by  another."  —  Mr.  Justice 
Werner  in  Ives  vs.  South  Buffalo  Railway  Company,  201  New  York 
271,  293  (1911). 

663  Due  ' '  process  of  law  ....  means  ....  that  ev- 
ery man's  right  to  life,  liberty  and  property  is  to  be  disposed  of  in 
accordance  with  those  ancient  and  fundamental  principles  which 
were  in  existence  when  our  Constitutions  were  adopted. ' '  —  Mr. 
Justice  Werner  in  Ives  vs.  South  Buffalo  Railway  Company,  201 
New  York  271,  293  (1911). 


294  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

664  See  Mercer's  Constitutionality  of  Workmen's  Compensation 
Acts  (pamphlet)  ;  Harper's  Workmen's  Compensation  in  Illinois  in 
Illinois  Law  Review,  Vol.  VI,  pp.  170-188,  255-261 ;  constitutional 
briefs  in  the  reports  of  the  employers'  liability  commissions  of  New 
York,  Ohio,  and  Washington ;  the  brief  submitted  by  the  Industrial 
Commission  of  Wisconsin  in  in  re  Filler  and  Stowell  Company 
(pamphlet)  ;  briefs  of  Yaple  and  Hogan  in  State  ex  rel.  Yaple  vs. 
Creamer  (pamphlets)  and  Hearing  before  the  United  States  Em- 
ployers' Liability  and  Workmen's  Compensation  Commission,  Sen- 
ate Document  No.  90,  Vol.  II,  Sixty-second  Congress,  first  session, 
briefs  of  Launcelot  Packer,  Frank  B.  Kellogg,  and  Ernst  Freund, 
of  the  National  Civic  Federation  and  of  Congressman  Sabath. 

665  See  pp.  12,  13,  15  above  and  authorities  there  cited. 

666  See  Wambaugh's  Workmen's  Compensation  Acts:  Their  Theory 
and  Their  Constitutionality  in  the  Harvard  Law  Review,  Vol.  XXV, 
p.  129. 

667  Said  Lord  Brougham,  in  Duncan  vs.  Findlater,  6  Clark  and 
Finelly  893,  910  (England,  1839)  :  ''I  am  liable  for  what  is  done 
for  me  and  under  my  orders  by  the  man  I  employ  ....  and 
the  reason  I  am  liable  is  this,  that  by  employing  him  I  set  the  whole 
thing  in  motion ;  and  what  he  does,  being  done  for  my  benefit  and 
under  my  direction,  I  am  responsible  for  the  consequences  of  doing 
it." 

668  Much  is  made  of  these  analogies  in  the  briefs  of  Messrs.  E.  V. 
Mercer,  Launcelot  Packer,  and  Ernst  Freund,  cited  in  note  664 
above. 

669  See  the  luminous  opinion  of  Chief  Justice  Winslow  in  Borgnis 
et  al  vs.  Falk  Company,  133  Northwestern  209,  215,  216  (Wisconsin, 
1911).  Compare  Mr.  Justice  Holmes's  statement:  "We  must  be 
cautious  about  pushing  the  broad  words  of  the  14th  Amendment  to 
a  drily  logical  extreme".  —  Noble  State  Bank  vs.  Haskell,  31  Su- 
preme Court  Reporter  186,  187  (1911). 

670  Said  Mr.  Justice  Matthews,  speaking  for  the  United  States  Su- 
preme Court :  ' '  The  principle  does  not  demand  that  the  laws  exist- 
ing at  any  point  of  time  shall  be  irrepealable,  or  that  any  forms  of 


NOTES  AND  REFERENCES  295 

remedies  should  necessarily  continue."  —  Hurtado  vs.  California, 
110  United  States  516,  536  (1884). 

Compare  the  language  in  Twining  vs.  New  Jersey,  211  United 
States  78,  101  (1909). 

671  Hurtado  vs.  California,  110  United  States  516,  529  (1884). 

672  Holden  vs.  Hardy,  169  United  States  366,  387  (1898). 

673  Hurtado  vs.  California,  110  United  States  516,  531  (1884). 
"The  Constitution  of  the  United  States  was  ordained,  it  is  true,  by 

descendents  of  Englishmen,  who  inherited  the  traditions  of  English 
law  and  history;  but  it  was  made  for  an  undefined  and  expanding 
future,  and  for  a  people  gathered  and  to  be  gathered  from  many 
Nations  and  of  many  tongues.  And  while  we  take  just  pride  in  the 
principles  and  institutions  of  the  common  law,  we  are  not  to  forget 
that  in  lands  where  other  systems  of  jurisprudence  prevail,  the  ideas 
and  processes  of  civil  justice  are  also  not  unknown.  Due  process  of 
law,  in  spite  of  the  absolutism  of  continental  governments,  is  not 
alien  to  that  Code  which  survived  the  Roman  Empire  as  the  founda- 
tion of  modern  civilization  in  Europe,  and  which  has  given  us  that 
fundamental  maxim  of  distributive  justice,  Suum  cuique  tributere. 
There  is  nothing  in  Magna  Charta,  rightly  construed  as  a  broad 
charter  of  public  right  and  law,  which  ought  to  exclude  the  best 
ideas  of  all  systems  and  of  every  age ;  and  as  it  was  the  characteristic 
principle  of  the  common  law  to  draw  its  inspiration  from  every  foun- 
tain of  justice,  we  are  not  to  assume  that  the  sources  of  its  supply 
have  been  exhausted.  On  the  contrary,  we  should  expect  that  the 
new  and  various  experiences  of  our  own  situation  and  system  will 
mold  and  shape  it  into  new  and  not  less  useful  forms. ' ' 

674Munn  vs.  Illinois,  94  United  States  113,  134,  (1876)  ;  Employ- 
ers' Liability  Cases,  32  Supreme  Court  Reporter  169,  174,  (1912). 

675  "The  rules  of  law  relating  to  contributory  negligence  and  as- 
sumption of  the  risk  and  the  effect  of  negligence  by  a  fellow  servant 
were  established  by  the  courts,  not  by  the  Constitution,  and  the  Leg- 
islature may  change  them  or  do  away  with  them  altogether  as  de- 
fenses ....  as  in  its  wisdom  in  the  exercise  of  powers  en- 
trusted to  it  by  the  Constitution  it  deems  will  be  best  for  the  'good 


296  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

and  welfare  of  this  commonwealth. '  "  —  Opinion  of  the  Justices,  96 
Northeastern  308,  315  (Massachusetts,  1911). 

076  Freimcrs  Police  Power,  Sec.  111. 

077  Noble  State  Bank  vs.  Haskell,  219  United  States  104,  111 
(1911). 

678  See  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1104, 
1114  (Washington,  1911)  ;  Cunningham  vs.  Northwestern  Improve- 
ment Company,  119  Pacific  554,  561  (Montana,  1911)  ;  State  ex  rel. 
Yaple  vs.  Creamer,  97  Northeastern  602,  603  (Ohio,  1912)  ;  Employ- 
ers' Liability  Cases,  32  Supreme  Court  Reporter  169,  175  (1912). 

The  foremost  American  authority  on  the  extent  and  limits  of  the 
police  power  has  written:  "The  principle  that  inevitable  loss 
should  be  borne  not  by  the  person  on  whom  it  may  happen  to  fall, 
but  by  the  person  who  profits  by  the  dangerous  business  to  which  the 
loss  is  incident,  embodies  a  very  intelligible  idea  of  justice,  and  which 
seems  to  be  in  accord  Avith  modern  social  sentiment."  —  Freund's 
Police  Power,  Sec.  634. 

679  Mr.  Justice  Werner,  speaking  for  the  New  York  Court  of  Ap- 
peals, remarked  that  the  Workmen's  Compensation  Act  of  New 
York  "does  nothing  to  conserve  the  health,  safety,  or  morals  of  the 
employes,  and  it  imposes  upon  the  employer  no  new  affirmative  duties 
or  responsibilities  in  the  conduct  of  his  business.  Its  sole  purpose 
is  to  make  him  liable  for  injuries  which  may  be  sustained  wholly 
without  his  fault. ' '  —  Ives  vs.  South  Buffalo  Railway  Company,  94 
Northeastern  431,  442,  443  (New  York,  1911). 

But  the  learned  Justice  spoke  without  investigation  and  his  unin- 
formed opinion  on  a  question  of  fact  stands  in  flat  contradiction  to 
the  recorded  experience  of  every  country  that  has  established  sys- 
tematic accident  indemnity. 

680  See  the  brief  of  Miles  M.  Dawson  in  Hearings  before  the  United 
States  Employers'  Liability  and  Workmen's  Compensation  Com- 
mission, Senate  Document  No.  90,  Vol.  II,  pp.  240-250,  Sixty-second 
Congress*  First  Session,  especially  pp.  249-251 ;  Schwedtman  and 
Emery's  Accident  Prevention  and  Relief,  Chs.  Ill,  XIV,  and  Ap- 
pendix, Part  I. 


NOTES  AND  REFERENCES  297 

081  Many  of  these  statutes  are  reviewed  in  State  ex.  rcl.  Davis- 
Smith  vs.  Clausen,  117  Pacific  1101  (Washington,  1911). 

682  Atlantic  Coast  Line  Railway  Company  vs.  Riverside  Mills,  219 
United  States  186  (1911). 

683  St.  Louis  and  San  Francisco  Railway  Company  vs.  Mathews, 
165  United  States  1  (1897). 

684  Chicago,  Rock  Island  and  Pacific  Railway  Company  vs.  Zer- 
necke,  183  United  States  582  (1902). 

685  Bertholf  vs.  O'Reilly,  74  New  York  509  (1878). 

686  Exempt  Firemen's  Fund  vs.  Roome,  29  Hun  391,  394  (New 
York,  1883)  ;  Firemen's  Benevolent  Association  vs.  Lounsbury,  21 
Illinois  511  (1859). 

687  Van  Horn  vs.  People,  46  Michigan  183 ;  McGlone  vs.  Womack, 
129  Kentucky  274. 

688  Noble  State  Bank  vs.  Haskell,  219  United  States  104  (1911). 

689Holden  vs.  Hardy,  169  United  States  366  (1898)  —a  miners' 
eight-hour  law  is  not  invalid  because  applying  to  only  one  class  of 
workmen;  Muller  vs.  Oregon,  208  United  States  412  (1908)— a 
woman 's  ten-hour  law  is  not  invalid  because  not  applicable  to  men. 

690  Missouri  Pacific  Railway  Company  vs.  Mackey,  127  United 
States  205  (1888)  ;  Atchison,  Topeka  and  Santa  Fe  Railway  Com- 
pany vs.  Matthews,  174  United  States  96 ;  Louisville  and  Nashville 
Railway  Company  vs.  Melton,  218  United  States  36  (1911)  ;  Deppe 
vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  36  Iowa  52 
(1872). 

691  Opinion  of  the  Justices,  96  Northeastern  308,  315  (Massachu- 
setts, 1911). 

692  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101,  1115 
(Washington,  1911)  ;  Ives  vs.  South  Buffalo  Railway  Company,  94 
Northeastern  431,  438  (New  York,  1911). 

693  Cunningham  vs.  Northwestern  Improvement  Company,  119 
Pacific  554,  561  (Montana,  1911). 

694  Employers'  Liability  Cases,  32  Supreme  Court  Reporter  169, 
176  (1912). 


298  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

ess  Borgnis  et  al  vs.  Falk  Company,  133  Northwestern  209,  218 
(Wisconsin,  1911)  ;  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern 
602,  608  (Ohio,  1912). 

696  McLean  vs.  Arkansas,  211  United  States  539  (1909).  An  act 
regulating  the  weighing  of  coal  at  mines  was  not  bad  for  applying 
only  to  mines  which  employ  more  than  ten  miners. 

697  Borgnis  et  al  vs.  Falk  Company,  133  Northwestern  209,  217 
(Wisconsin,  1911)  ;  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern 
602,605  (Ohio,  1912). 

698  Yick  Wo  vs.  Hopkins,  118  United  States  356  (1886).  The  re- 
striction of  the  laundry  business  to  certain  nationalities  is  not  found- 
ed on  reasonable  grounds  as  to  qualifications  for  that  particular 
business. 

699  See  Laws  of  Nevada,  1911,  Ch.  183,  Sec.  3 ;  Laws  of  New  York, 
1910,  Ch.  674,  Sec.  2  (215). 

too  rp^-g  p0jnt  js  expressly  reserved  in  State  ex  rel.  Davis-Smith 
vs.  Clausen,  117  Pacific  1101,  1115  (Washington,  1911),  until  a 
case  shall  present  the  question  of  a  particular  employment. 

701  Cunningham  vs.  Northwestern  Improvement  Company,  119 
Pacific  554,  566  (Montana,  1911). 

702  Cunningham  vs.  Northwestern  Improvement  Company,  119 
Pacific  554  (Montana,  1911)  561  (general  scheme  of  the  act  is  within 
the  police  power),  561  (not  class  legislation),  564  (does  not  violate 
guarantee  of  jury  trial),  564  (does  not  deny  due  process  of  law). 

703  This  point  has  not  been  specifically  passed  on  in  any  of  the 
workmen 's  compensation  decisions  but  is  hardly  open  to  controversy. 

704  Ives  vs.  South  Buffalo  Railway  Company,  94  Northeastern  431, 
438,439  (New  York,  1911). 

705  Opinion  of  the  Justices,  96  Northeastern  308,  316  (Massachu- 
setts, 1911). 

706  Cunningham  vs.  Northwestern  Improvement  Company,  119 
Pacific  554,  564  (Montana,  1911). 

707  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern  602,  603 
(Ohio,  1912). 


NOTES  AND  REFERENCES  299 

708  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101,  1119 
(Washington,  1911). 

709  Opinion  of  the  Justices,  96  Northeastern  308,  316  (Massachu- 
setts, 1911)  ;  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern  602, 
605  (Ohio,  1912). 

710  Constitution  of  Iowa,  Art.  I,  Sec.  9.  Similar  language  is  em- 
ployed in  the  constitutions  of  Montana,  Ohio,  and  Washington. 

711  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101,  1119 
(Washington,  1911)  ;  Cunningham  vs.  Northwestern  Improvement 
Company,  119  Pacific  554  (Montana,  1911). 

There  are  plenty  of  eases  to  the  effect  that  a  State  legislature  may 
abolish  or  modify  a  common  law  right  of  action  for  torts.  See  Mar- 
tin vs.  Pittsburgh  and  Lake  Erie  Railroad  Company,  203  United 
States  284,  295  (1906)  ;  Atchison,  Topeka  and  Santa  Fe  Railway 
Company  vs.  Sowers,  213  United  States  55  (1909)  ;  Williams  vs. 
Galveston,  90  Southwestern  505  (Texas,  1905)  ;  Campbell  vs.  Holt, 
115  United  States  620  (1885). 

712  The  Ohio  and  Washington  cases  were  mandamus  proceedings 
to  compel  the  payment  of  warrants  drawn  by  the  State  liability 
boards;  the  Wisconsin  case  was  a  bill  in  equity  brought  by  certain 
employees  of  the  Falk  Company  to  enjoin  the  Company  from  filing 
an  election  under  the  Workmen's  Compensation  Act.  In  each  case, 
the  issues  might  have  been  disposed  of  without  raising  any  consti- 
tutional question. 

713  Concurring  opinion  of  Mr.  Justice  Chadwick  in  State  ex  rel. 
Davis-Smith  vs.  Clausen,  117  Pacific  1101,  1120,  1121  (Washing- 
ton, 1911). 

714  See  Constitution  of  Iowa,  Art.  Ill,  Sec.  1,  and  Art.  V.,  Sec.  1. 

715  Opinion  of  the  Justices,  96  Northeastern  308,  316  (Massachu- 
setts, 1911)  ;  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101, 
1119  (Washington,  1911)  ;  Borgnis  et.  al.  vs.  Falk  Company,  133 
Northwestern  209,  218-220  (Wisconsin,  1911)  ;  Cunningham  vs. 
Northwestern  Improvement  Company,  119  Pacific  554,  564  (Mon- 
tana, 1911)  ;  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern  602, 
607  (Ohio,  1912). 

In  State  ex  rel.  vs.  Thomas,  132  Northwestern  842  (Iowa,  1911), 


300  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

the  validity  of  an  act  vesting  quasi-judicial  functions  in  the  county 
and  State  Superintendent  of  Schools  was  upheld.  To  similar  effect 
see  Den  vs.  Hoboken  Land  Improvement  Company,  18  Howard  272 
(United  States,  1855)  ;  Minneapolis,  St.  Paul  and  Sault  Ste.  Marie 
Railway  Company  vs.  Railroad  Commission,  136  Wisconsin  146 
(1908). 

716  See  notes  in  the  Harvard  Law  Review,  Vol.  XXIV,  pp.  647- 
652 ;  also  joint  protest  signed  by  fourteen  teachers  of  constitutional 
law  in  thirteen  of  the  principal  law  schools  of  the  country  and 
printed  in  The  Outlook,  July  29,  1911. 

717  Compare  Wambaugh's  Workmen's  Compensation  Acts:  Their 
Theory  and  Their  Constitutionality  in  the  Harvard  Law  Review, 
Vol.  XXV,  p.  129. 

718  Borgnis  et.  al.  vs.  Falk  Company,  133  Northwestern  209,  218 
(Wisconsin,  1911). 

719  State  ex  rel.  Yaple  vs.  Creamer,  97  Northeastern  602,  605 
(Ohio,  1912). 

720  Compare  People  vs.  Williams,  189  New  York,  131,  135  (1907). 

721  See  the  brief  of  Judge  Nathaniel  French  in  Report  of  the  Iowa 
Employers'  Liability  and  Workmen's  Compensation  Commission, 
Part  II,  pp.  229-250.  Compare  State  ex  rel.  Davis-Smith  vs.  Clau- 
sen, 117  Pacific  1101,  1116-1118  (Washington,  1911). 

722  Workmen's  Compensation  Act  of  Kansas,  1911,  Sec.  11,  (a), 
(1)  —  compensation  to  dependents  not  citizens  of  and  residing  in  the 
United  States  or  Canada  limited  to  $750 ;  Laws  of  New  Hampshire, 
1911,  Ch.  163,  Sec.  6,  (1),  (a)  — compensation  only  to  widow,  par- 
ents or  children  resident  in  New  Hampshire ;  Laws  of  New  Jersey, 
1911,  Ch.  95,  Paragraph  12  —  excludes  alien  dependents,  not  resi- 
dent in  United  States ;  Laws  of  Washington,  1911,  Ch.  74,  Sec.  3  — 
excludes  alien  dependents,  not  resident  in  the  United  States,  except 
parents  and  except  as  otherwise  provided  by  treaty. 

723  Bulletin  of  the  Industrial  Commission  of  Wisconsin,  Vol.  I, 
No.  3,  p.  87. 


NOTES  AND  REFERENCES  301 

724  From  unpublished  records  in  the  office  of  the  Industrial  Com- 
mission of  "Wisconsin. 

725  Letter  from  Secretary  Sapiro  of  the  Industrial  Accident  Board 
of  California,  October  10,  1912. 

726  Letter  from  Secretary  Sapiro  of  the  Industrial  Accident  Board 
of  California,  September  10,  1912. 

727  Bulletin  of  the  Illinois  Bureau  of  Labor  Statistics,  July  1, 1912, 
pp.  15,  16. 

728  Statistical  Bulletin  No.  1  of  the  Massachusetts  Industrial  Ac- 
cident Board,  p.  7. 

729  Statistical  Bulletin  No.  1  of  the  Massachusetts  Industrial  Acci- 
dent Board,  p.  4. 

730  Report  to  the  Governor  of  New  Jersey  by  the  Employers'  Lia- 
bility Commission,  March,  1912,  p.  4. 

731  Laws  of  New  Jersey,  1911,  Ch.  241,  Sec.  2 ;  Acts  and  Resolves 
of  Massachusetts,  1911,  Part  III,  Sec.  18. 

732  Statistical  Bulletin  No.  1  of  the  Massachusetts  Industrial  Acci- 
dent Board,  p.  3. 

733  Compare  Freund  in  Report  of  the  United  States  Employers' 
Liability  and  Workmen's  Compensation  Commission  in  Senate  Docu- 
ment No.  338,  pp.  256,  267,  Sixty-second  Congress,  Second  Session. 

734 Review  of  the  First  Eight  Months'  Operation  of  the  Work- 
men's Compensation  Act  (pamphlet  issued  by  the  Industrial  Insur- 
ance Commission  of  Washington). 

735  From  unpublished  data  supplied  by  Chairman  Crownhart  of 
the  Industrial  Commission  of  Wisconsin.  Stock  company  rates  un- 
der the  Wisconsin  Compensation  Act  are  taken  as  100. 

736  Letter  of  William  C.  Archer  of  the  Ohio  Liability  Board  of 
Awards,  October  28,  1912. 

737  See  the  Rosebcrry  Liability  and  Compensation  Law  (pamphlet 
issued  by  the  Industrial  Accident  Board  of  California)  ;  The  Ohio 
Journal  of  Workmen's  Compensation  Insurance,  September,  1912. 
The  statement  as  to  the  attitude  of  the  Industrial  Commission  of 


302  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Wisconsin  is  based  on  repeated  personal  interviews  with  Chairman 
Crownhart. 

738  Ample  evidence  to  this  effect  has  been  gathered  by  the  Indus- 
trial Commission  of  Wisconsin.  Some  details  will  be  published  in  a 
forthcoming  Bulletin.  The  writer  is  not  at  liberty  to  mention  par- 
ticular cases,  but  certain  large  firms  still  enjoy  the  rates  which  were 
in  effect  under  the  old  liability  laws,  before  the  defenses  of  fellow 
servant  and  assumption  of  risk  were  taken  away. 

739  Workmen's  Compensation  Act  of  the  State  of  Ohio  (pamphlet 
issued  by  the  Liability  Board  of  Awards),  p.  24. 

740  See  especially  Pound's  Liberty  of  Contract  in  the  Yale  Law 
Journal,  Vol.  XVIII,  p.  454;  The  Need  of  a  Sociological  Jurispru- 
dence in  The  Green  Bag,  Vol.  XIX,  p.  607 ;  and  Common  Law  and 
Legislation  in  the  Harvard  Law  Review,  Vol.  XXI,  p.  383. 

741  Both  the  Supreme  Judicial  Court  of  Massachusetts  and  the  Su- 
preme Court  of  Wisconsin  remarked  upon  the  mildness  of  the  acts 
before  them.  —  See  Opinion  of  the  Justices,  96  Northeastern  308, 
316  (Massachusetts,  1911)  ;  and  Borgnis  vs.  Falk  Company,  133 
Northwestern  209,  222,  223-226  (Wisconsin,  1911),  concurring  opin- 
ions of  Justices  Barnes  and  Marshall. 

742  See  Downey's  History  of  Labor  Legislation  in  Iowa,  Ch.  VIII. 

743  House  File  303  by  Hamilton ;  Senate  File  125  by  Clarkson, 
Thirty-fourth  General  Assembly,  1911. 

744  Statements  to  the  writer  by  President  A.  L.  Urick  of  the  Iowa 
Federation  of  Labor  and  Secretary  G.  A.  Wrightman  of  the  Iowa 
Manufacturers'  Association. 

743  Laws  of  Iowa,  1911,  p.  230. 

740  The  ensuing  description  of  the  Iowa  Commission's  work  is 
based  upon  a  typewritten  copy  of  parts  of  the  Commission's  Re- 
port supplied  to  the  writer  in  advance  of  publication  through  the 
kindness  of  Chairman  Clarkson ;  Part  II  of  the  printed  Report ;  and 
data  kindly  supplied  to  the  writer  by  Secretary  Given  of  the  Iowa 
Employers'  Liability  Commission  in  July,  1912. 

747  From  (then)  unpublished  data  kindly  supplied  to  the  writer 


NOTES  AND  REFERENCES  303 

by  Secretary  Given  of  the  Iowa  Employers'  Liability  Commission 
in  July,  1912. 

748  Judge  French 's  brief  appears  in  the  Report  of  the  Iowa  Em- 
ployers' Liability  Commission,  Part  II,  pp.  229-250.  Mr.  Sherman 's 
address  is  noted  on  p.  197  of  the  Report.  For  the  remarks  of  Messrs. 
Pratt,  Packer,  and  others  see  index  to  the  same.  Other  statements 
in  the  text  are  based  on  information  furnished  by  Secretary  Given. 

749  Report  of  the  Iowa  Employers'  Liability  Commission,  Part  II. 

750  prom  a  typewritten  copy  kindly  furnished  in  advance  of  official 
publication  by  Chairman  Clarkson  of  the  Iowa  Commission. 

751  See  Hearings  before  the  United  States  Employers'  Liability  and 
"Workmen's  Compensation  Commission,  Senate  Document  No.  90, 
Vol.  I,  Part  III,  Sixty-second  Congress,  First  Session,  statements  of 
Samuel  Gompers,  for  American  Federation  of  Labor;  A.  B.  Gar- 
retson,  for  the  Order  of  Railway  Conductors;  W.  G.  Lee,  for  the 
Brotherhood  of  Railway  Trainmen;  James  A.  Emery,  for  the  Na- 
tional Association  of  Manufacturers;  G.  A.  Ranney,  for  the  Inter- 
national Harvester  Company. 

752  Legislation  on  the  principle  of  occupational  risks  has  been  en- 
acted as  follows: 


Country 

Year 

Country 

Year 

1. 

Alberta 

1908 

14. 

Luxemberg 

1902 

2. 

Austria 

1887 

15. 

Netherlands 

1901 

3. 

Belgium 

1903 

16. 

New  South  Wales 

1900 

4. 

British  Columbia 

1902 

17. 

New  Zealand 

1900 

5. 

Cape  of  Good  Hope 

1905 

18. 

Norway 

1894 

6. 

Denmark 

1898 

19. 

Quebec 

1909 

7. 

Finland 

1875 

20. 

Queensland 

1900 

8. 

France 

1898 

21. 

Russia 

1903 

9. 

Germany 

1884-1900 

22. 

Spain 

1900 

10. 

Great  Britain 

1897-1906 

23. 

Sweden 

1901 

11. 

Greece 

1902 

24. 

Switzerland 

1911 

12. 

Hungary 

1907 

25. 

Transvaal 

1907 

13. 

Italy 

1898-1904 

26. 

Western  Australia 

1902 

753  Mr.  Justice  Fullerton  in  State  ex  rel.  Davis-Smith  vs.  Clausen, 
117  Pacific  1101,  1114  (Washington,  1911). 

754  Schwedtman  and  Emery's  Accident  Prevention  and  Relief,  Ch. 
XIV,  entitled  Findings  and  Recommendations  of  the  Committee. 

755  Frankel  and  Dawson's  Workingmen's  Insurance  in  Europe, 
Ch.  VI. 


304  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

756  First  Report  of  the  New  York  Employers'  Liability  Commis- 
sion, 1910,  pp.  44-46. 

757  See  Zacher's  Die  Arbeit erversicherung  im  Auslande;  and 
Deutsche  Arbeit  erversicherung,  published  by  the  German  Imperial 
Insurance  Office. 

758  See,  for  example,  the  quotations  in  Schwedtman  and  Emery's 
Accident  Prevention  and  Relief,  pp.  148,  149.  See  especially  the 
report  of  the  parliamentary  committee  to  the  British  Trade  Union 
Congress  of  1908. 

759  See  brief  of  Miles  M.  Dawson,  in  Hearings  before  the  United 
States  Employers'  Liability  and  Workmen's  Compensation  Commis- 
sion, Senate  Document  No.  90,  Vol.  II,  pp.  251-255,  Sixty-second 
Congress,  First  Session;  also  Whelpley  in  The  Century  Magazine, 
June,  1911. 

760  See  the  briefs  of  Launcelot  Packer,  Frank  B.  Kellogg,  Ernst 
Freund,  Alfred  P.  Thorn,  James  A.  Lowell,  and  A.  J.  Sabath  in 
Report  of  the  United  States  Employers'  Liability  and  Workmen's 
Compensation  Commission,  Senate  Document  No.  338,  Vol.  II,  Sixty- 
second  Congress,  Second  Session. 

761  State  ex  rel.  Davis-Smith  vs.  Clausen,  117  Pacific  1101,  1120 
(Washington,  1911). 

762  Ives  vs.  South  Buffalo  Railway  Company,  94  Northeastern  431, 
448  (New  York,  1911).  "As  to  the  cases  of  Noble  State  Bank  vs. 
Haskell  ....  we  have  only  to  say  that  if  they  go  so  far  as  to 
hold  that  any  law,  whatever  its  effect,  may  be  upheld  because  by  the 
'prevailing  morality'  or  the  'strong  and  preponderant  opinion',  it 
is  deemed  'to  be  greatly  and  immediately  necessary  to  the  public 
welfare',  we  can  not  recognize  them  as  controlling  of  our  construc- 
tion of  our  own  constitution. ' ' 

763  Ives  vs.  South  Buffalo  Railway  Company,  94  Northeastern  431, 
437,  438  (New  York,  1911).  The  case  is  not  in  point  as  to  the  re- 
versal of  the  burden  of  proof.  But  so  many  statutes  have  been 
enacted  and  upheld  which  reverse  the  burden  of  proof  with  respect 
to  contributory  negligence  that  the  point  seems  hardly  open  to 
question. 


NOTES  AND  REFERENCES  305 

764  Cunningham  vs.  Northwestern  Improvement  Company,  L19 
Pacific  554,  566  (Montana,  1911). 

705  On  the  relative  costs  of  various  types  of  accident  insurance  see 
Frankel  and  Dawson's  Workingmen's  Insurant,  in  Europe,  under 
the  several  countries;  brief  of  Miles  M.  Dawson  in  Bearings  before 
the  United  States  Employers'  Liability  and  Workmen's  Compensa- 
tion Commission,  Senate  Doc  nun  nl  No.  90,  Vol.  II,  pp.  249-255,  Six- 
ty-second Congress,  First  Session;  Twenty-fourth  Ann  mil  Report  of 
the  United  States  Commissioner  of  Labor,  Vol.  I,  pp.  1095-1101 
(Germany)  ;  Vol.  II,  p.  2059  (Norway). 

766  See  Compensation  Insurance  for  Employers  (pamphlet  issued 
by  the  Massachusetts  Employees'  Insurance  Association)  ;  and  any 
number  of  the  Journal  of  Workmen's  Compensation  Insurance,  is- 
sued by  the  Ohio  Liability  Board  of  Awards. 

767  [Swiss]  Loi  federate  d' assurance  en  cas  de  malidie  et  en  cos 
d 'accident,  June,  1911,  Art.  51. 

768  Twenty-fourth  Annual  Report  of  the  United  States  Commis- 
sioner of  Labor,  Vol.  II,  p.  2591. 

769  Acts  and  Resolves  of  Massachusetts,  1911,  Ch.  751,  Part  III, 
Sec.  24. 

770  See,  for  example,  Report  of  the  Iowa  Employers'  Liability  and 
Workmen's  Compensation  Commission,  1912,  Part  II,  statements  of 
J.  "W.  Bettendorf,  R.  D.  Emery,  J.  M.  Hibbard,  G.  F.  Hendel,  A.  Pal, 
and  R.  S.  Sinclair. 

771  Compare  Bohlen's  A  Problem  in  the  Drafting  of  Workmen's 
Compensation  Acts  in  the  Harvard  Law  Review,  Vol.  XXV,  pp. 
328-348,  401-427,  517-547. 

772  See  Dawson's  Cost  of  Employers'  Liability  and  Workm<  n's 
Compensation  Insurance  in  the  Bulletin  of  the  United  States  Bureau 
of  Labor,  No.  90. 

773  See  Report  of  the  United  States  Employers'  Liability  and 
Workmen's  Compensation  Commission  in  Senate  Document  No.  90, 
Sixty-second  Congress,  First  Session,  brief  of  Miles  M.  Dawson  and 
statements  of  Samuel  Gompers,  A.  B.  Garretson,  W.  G.  Lee,  and 
E.  V.  Knapp. 


306  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

11  *  Report  of  the  Iowa  Employers'  Liability  Commission,  1912. 

775  Laws  of  Wisconsin,  1911,  Ch.  485. 

776  Laws  of  California,  1911,  Ch.  399,  Sec.  29. 

777  Workmen's  Compensation  and  Employers'  Inability  Acts  of 
Michigan,  1912,  Part  VI,  Sec.  7. 

778  Code  of  Iowa,  Supplement  of  1907,  Sec.  4999. 

779  See  Commons's  The  Industrial  Commission  of  Wisconsin,  in 
American  Labor  Legislation  Review,  Vol.  I,  No.  4. 

780  Revised  Statutes  of  Wisconsin,  Sec.  2394-48. 

781  Laivs  of  Wisconsin,  1911,  Ch.  485. 

i*2  Report  of  the  Iowa  Employers'  Liability  Commission,  1912. 

783  rpke  work  0f  the  safety  exhibit  was  interestingly  explained  to 
the  writer  by  Commissioner  Beck  of  the  Industrial  Commission  of 
Wisconsin. 


TABLE  OF  CASES  CITED 


TABLE  OF  CASES  CITED 

Akeson  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  p. 
243 

Allen  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  219 

Arenschield  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, p.  269 

Atchison,  Topeka  and  Santa  Fe  Railway  Company  vs.  Matthews,  p. 
297 

Atchison,  Topeka  and  Santa  Fe  Railway  Company  vs.  Sowers,  p.  299 

Atlantic  Coast  Line  Railway  Company  vs.  Riverside  Mills,  p.  297 

Atlee  vs.  Packet  Company,  p.  258 

Austin  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 
219 

Baird  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 
250,  255 

Baird  vs.  Morford,  pp.  221,  256 

Baker  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 
220 

Baldwin  vs.  St.  Louis,  Keokuk  and  Northwestern  Railway  Com- 
pany, pp.  230,  231,  232,  233,  273 

Barto  vs.  Iowa  Telephone  Company,  p.  217 

Bartonshill  Coal  Company  vs.  Reid,  pp.  226,  228,  237,  273 

Beardsley  vs.  Murray  Iron  Works,  p.  216 

Beckman  vs.  Consolidation  Coal  Company,  pp.  253,  270 

Benn  vs.  Null,  p.  232 

Beresford  vs.  American  Coal  Company,  pp.  225,  229,  230,  231,  232 

Bertholf  vs.  O'Reilly,  p.  297 

Blazenic  vs.  Iowa  and  Wisconsin  Coal  Company,  pp.  219,  230,  231 

Borgnis  et  al,  vs.  Falk  Company,  pp.  211,  293,  294,  298,  299,  300,  302 

Boston  Insurance  Company  vs.  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  p.  216 

309 


310  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Bourrett  vs.  Chicago  and  Northwestern  Railway  Company,  p.  248 
Bower  vs.  Burlington  and  Southwestern  Railway  Company,  p.  241 
Box  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

263,  265 
Brann  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

217,  218,  229,  234 
Bromberg  vs.  Evans  Laundry  Company,  p.  263 
Brown  vs.  Maxwell,  p.  228 

Brown  vs.  West  Riverside  Coal  Company,  pp.  218,  221 
Brownfield  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  219,  250 
Bruggeman  vs.  Illinois  Central  Railway  Company,  pp.  248,  249 
Bruns  vs.  North  Iowa  Brick  Company,  pp.  224,  265 
Brusseau  vs.  Lower  Brick  Company,  pp.  217,  218 
Bryce  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  219,  265 
Bryce  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 

251,  253,  261,  262 
Bucklew  vs.  Central  Iowa  Railway  Company,  p.  241 
Burke  vs.  Norwich  and  Worcester  Railroad  Company,  pp.  238,  239, 

240 
Burns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  p. 

219 
Butler  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  pp. 

220,  242,  243,  244 
Butterfield  vs.  Forrester,  p.  246 

Campbell  vs.  Holt,  p.  299 

Canon  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 

243,  244 
Carver  vs.  Minneapolis  and  St.  Louis  Railway  Company,  p.  261 
Caspar  vs.  Lewin,  p.  268 

Chicago  and  Great  Eastern  vs.  Harney,  p.  236 
Chicago  and  Milwaukee  Railway  Company  vs.  Ross,  p.  276 
Chicago,  Burlington  and  Quincy  Railway  Company  vs.  McGuire, 

pp.  240,  246 
Chicago,  Milwaukee  and  St.  Paul  Railway  Company  vs.  Artery,  pp. 

242,  244 


TABLE  OF  CASES  CITED  3 1 1 

Chicago,  Milwaukee  and  St.  Paul  Railway  Company  vs.  Voelker, 
p.  220 

Chicago,  Rock  Island  and  Pacific  Railway  Company  vs.  Zernecke, 
p.  297 

Cinkovitch  vs.  Thistle  Coal  Company,  pp.  260,  261 

Cleveland,  Cincinnati,  Chicago  and  St.  Louis  Railway  Company  vs. 
Foland,  p.  242 

Cleveland,  Columbus  &  Cincinnati  Railway  Company  vs.  Keary, 
p.  228 

Coates  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  261 

Coffman  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
p.  254 

Coggs  vs.  Bernard,  p.  213 

Coles  vs.  Union  Terminal  Railway  Company,  pp.  262,  264 

Collett  vs.  Foster,  p.  226 

Collingwood  vs.  Illinois  and  Iowa  Fuel  Company,  pp.  231,  232 

Conners  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  223,  247 

Connors  vs.  Chicago  and  Northwestern  Railway  Company,  p.  242 

Coon  vs.  Utica  and  Syracuse  Railway  Company,  p.  228 

Cooper  vs.  Central  Railroad  of  Iowa,  pp.  216,  218,  219,  232 

Cooper  vs.  Oelwein,  p.  247 

Corson  vs.  Coal  Hill  Coal  Company,  p.  218 

Cowles  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 
259 

Crabell  vs.  Wapello  Coal  Company,  p.  262 

Cubbage  vs.  Youngerman,  p.  229 

Cunningham  vs.  Northwestern  Improvement  Company,  pp.  293, 
296,  297,  298,  299,  305 

Cushman  vs.  Carbondale  Fuel  Company,  p.  219 

Dalton  vs.   Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  256 
Davies  vs.  Mann,  p.  248 

Den  vs.  Hoboken  Land  Improvement  Company,  p.  300 
Deppe  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

241,  242,  243,  297 


312  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Dillon  vs.  Iowa  Central  Railway  Company,  pp.  215,  216 

Doggett  vs.  Illinois  Central  Railroad  Company,  p.  253 

Doggett  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  p. 

251 
Donald  vs.   Chicago,  Burlington  and  Quincy  Railway  Company, 

p.  246 
Donaldson  vs.  Mississippi  and  Missouri  Railroad  Company,  pp.  233, 

246 
DoWell  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  224 
Doyle  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway  Company, 

p.  221 
Driscoll  vs.  Allis  Chalmers,  pp.  206,  240,  277 
Dryburg  vs.  Mercur  Gold  Mining  and  Milling  Company,  p.  240 
Duffey  vs.  Consolidated  Block  Coal  Company,  pp.  224,  225,  259,  260 
Duncan  vs.  Findlater,  pp.  225,  294 

Dunn  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p.  245 
Durant  vs.  Lexington  Coal  Mining  Company,  p.  264 
Duree  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  p. 

224 
Dynen  vs.  Leach,  p.  267 

Ellis  vs.  Turner,  pp.  225,  256 

Exempt  Firemen's  Fund  vs.  Roome,  p.  297 

Farwell  vs.  Boston  and  Worcester  Railroad  Corporation,  pp.  209, 
212,  213,  222,  228,  235,  236,  237,  238,  239,  267,  272,  276 

Fink  vs.  Des  Moines  Ice  Company,  pp.  216,  229 

Firemen's  Benevolent  Association  vs.  Lounsbury,  p.  297 

Fitter  vs.  Iowa  Telephone  Company,  p.  216 

Fletcher  vs.  Rylands,  p.  209 

Foley  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 
230,  232,  242 

Forbes  vs.  Boone  Valley  Coal  and  Railway  Company,  pp.  216,  219 

Forney  vs.  Mardis  Company,  pp.  231,  232 

Foster  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 
265 


TABLE  OF  CASES  CITED  3 1 3 

Frandsen  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  233,  242,  251,  266 
Fredericks  vs.  Fort  Dodge  Brick  and  Tile  Company,  p.  229 

Galloway  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
pp.  215,  218,  220 

Gibson  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  255 

Goodrich  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway 
Company,  p.  248 

Gorman  vs.  Des  Moines  Brick  Company,  pp.  255,  259,  260,  266 

Gould  vs.  Schermer,  pp.  218,  221,  235 

Green  vs.  Western  American  Company,  p.  264 

Green-Wheeler  Shoe  Company  vs.  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  p.  221 

Greenleaf  vs.  Dubuque  and  Sioux  City  Railroad  Company,  pp.  250, 
252,  265 

Greenleaf  vs.  Illinois  Central  Railroad  Company,  pp.  218,  252,  253, 
259,  261,  268 

Haden  vs.  Sioux  Cit}*-  and  Pacific  Railway  Company,  pp.  244,  247 
Haley  vs.  Chicago  and  Northwestern  Railway  Company,  pp.  246, 

247 
Hall  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p.  219 
Hamilton  vs.  Des  Moines  Valley  Railroad  Company,  pp.  219,  250 
Hamm  vs.  Bettendorf  Axle  Company,  pp.  216,  217,  229,  231,  232 
Handelun  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  221,  242,  243 
Hanson  vs.  Hammell,  p.  216 
Hardy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

220,  230,  233 
Harney  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  219,  261,  262,  263 
Hatfield  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  247 
Hathaway  vs.  City  of  Des  Moines,  p.  230 

Hathaway  vs.  Illinois  Central  Railway  Company,  pp.  216,  232,  245 
Ha  worth  vs.  Seevers  Manufacturing  Company,  p.  229 


314  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Hays  vs.  Millar,  p.  226 

Hazlerigg  vs.  Dobbins,  pp.  216,  251 

Hendrickson  vs.  United  States  Gypsum  Company,  pp.  216,  217,  229 

Hoben  vs.  Burlington  and  Missouri  River  Railroad  Company,  pp. 
230,  232 

Holden  vs.  Hardy,  pp.  295,  297 

Hopkinson  vs.  Knapp  and  Spalding  Company,  p.  256 

Horan  vs.  Chicago,  St.  Paul,  Minneapolis  and  Omaha  Railway  Com- 
pany, pp.  252,  255 

Hosic  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 
219 

Huggard  vs.  Sugar  Refining  Company,  p.  235 

Hughes  vs.  Iowa  Central  Railway  Company,  pp.  243,  244,  245 

Hunt  vs.  Chicago  and  Northwestern  Railroad  Company,  pp.  218, 
245 

Hunter  vs.  North  Iowa  Brick  and  Tile  Company,  p.  216 

Hurtado  vs.  California,  p.  295 

Hutchinson  vs.  York,  Newcastle  and  Berwick  Railway  Company,  p. 
228 

Ilott  vs.  Wilkes,  p.  214 

Island  Coal  Company  vs.  Swaggerty,  p.  264 

Ives  vs.  South  Buffalo  Railway  Company,  pp.  213,  293,  296,  297,  298, 

304 
Ives  vs.  Welden,  pp.  219,  253 

Jensen  vs.  Omaha  and  St.  Louis  Railway  Company,  p.  244 
Jerolman  vs.  Chicago  Great  Western  Railway  Company,  pp.  247, 

257 
Judd  vs.  Letts,  p.  240 

Kearns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  p. 

252 
Keatley  vs.  Illinois  Central  Railway  Company,  p.  244 
Keefe  vs.  Chicago  and  Northwestern  Railway  Company,  pp.  247, 

248 
Keist  vs.  Chicago  and  Great  Western  Railway  Company,  p.  222 


TABLE  OF  CASES  CITED  !  1 1 5 

Kerns  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 

223,  263 
Kilpatrick  vs.  Grand  Trunk  Railway  Company,  pp.  264,  268 
Kimmerle  vs.  Dubuque  Altar  Manufacturing  Company,  p.  234 
Kirby  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 

219 
Kroeger  vs.  Marsh  Bridge  Company,  p.  235 
Kroy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

256,  259,  267 

Lamb  vs.  Wagner  Manufacturing  Company,  p.  264 

Lanza  vs.  Le  Grand  Quarry  Company,  p.  217 

Larson  vs.  Illinois  Central  Railway  Company,  pp.  242,  244 

Liming  vs.  Illinois  Central  Railway  Company,  p.  221 

Little  Miami  Railroad  Company  vs.  Stevens,  p.  277 

Louisville  and  Nashville  Railway  Company  vs.  Melton,  pp.  240,  242, 

297 
Luce  vs.  Chicago,  St.  Paul,  Minneapolis  and  Omaha  Railway  Com- 
pany, p.  244 
Luisi  vs.  Chicago  Great  Western  Railway  Company,  p.  216 

McAunich  vs.  Mississippi  and  Missouri  Railroad  Company,  p.  241 

McCarthy  vs.  Mulgrew,  p.  262 

McCaull  vs.  Bruner,  pp.  215,  218 

McCreery  vs.  Union  Roofing  and  Manufacturing  Company,  p.  220 

McDermott  vs.  Iowa  Falls  and  Sioux  City  Railway  Company,  p.  251 

Mace  vs.  Boedker  and  Company,  pp.  241,  261 

McGlone  vs.  Womack,  p.  297 

McGuire  vs.  Chicago,  Burlington  and  Quincy  Railroad  Company. 
pp.  246,  274 

McKee  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 
218,  221,  252,  253 

McKelvy  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  257 

McKnight  vs.  Iowa  and  Minnesota  Railway  Consti-uction  Company, 
p.  241 

McLean  vs.  Arkansas,  p.  298 

McLeod  vs.  Sioux  City  Traction  Company,  p.  241 


316  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

M  'Manus  vs.  Crickett,  p.  225 

McQueeny  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company, 
pp.  223,  224,  231 

Madden  vs.  Saylor  Coal  Company,  pp.  221,  235 

Magee  vs.  Chicago  and  Northwestern  Railway  Company,  pp.  218, 
253 

Malone  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  242,  243,  244 

Manning  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  235,  245 

Martin  vs.  Chicago,  Rock  Island  and  Pacific  Railroad  Company,  pp. 

223,  263 

Martin  vs.  Des  Moines  Edison  Light  Company,  pp.  216,  218,  223, 

224,  260,  261,  272 

Martin  vs.  Pittsburgh  and  Lake  Erie  Railroad  Company,  p.  299 
Matson  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  245 
Max  Morris,  The,  p.  258 
Mayes  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

224,  261 
Meloy  vs.  Chicago  and  Northwestern  Railway  Company,  p.  218 
Mericle  vs.  Acme  Cement  Plaster  Company,  p.  217 
Messenger  vs.  Pate,  p.  219 

Michigan  Central  Railway  Company  vs.  Leahey,  p.  236 
Miller  vs.  Cedar  Rapids  Sash  and  Door  Company,  pp.  249,  264,  269 
Miller  vs.  White  Bronze  Monument  Company,  pp.  259,  260,  265 
Minneapolis  and  St.  Louis  Railway  Company  vs.  Herrick,  p.  242 
Minneapolis,  St.  Paul  and  Sault  Ste.  Marie  Railway  Company  vs. 

Railroad  Commission,  p.  300 
Missouri  Pacific  Railway  Company  vs.  Mackey,  p.  297 
Mobile,  Jackson  and  Kansas  City  Railway  Company  vs.  Turnipseed, 

pp.  240,  242 
Money  vs.  Lower  Vein  Coal  Company,  p.  263 
Morris  vs.  Excelsior  Coal  Company,  p.  217 
Mosgrove  vs.  Zimbleman  Coal  Company,  pp.  217,  220 
Muller  vs.  Oregon,  p.  297 
Mumford  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  245,  261,  266 


TABLE  OF  CASES  CITED  317 

Munn  vs.  Illinois,  p.  295 

Murphy  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  218,  245,  256 
Murray  vs.  South  Carolina  Railroad  Company,  pp.  208,  210,  211, 

212,  214,  222,  226,  227,  228,  236,  267,  272 

Nappa  vs.  Erie  Railroad  Company,  p.  270 

Neal  vs.  Sheffield  Brick  and  Tile  Company,  p.  229 

Nelling  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway  Company, 

p.  251 
Nelson  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 

242,  243 
Newbury  vs.  Getchel  &  Martin  Manufacturing  Company,  pp.  220, 

231 
Nichols  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 

252 
Noble  State  Bank  vs.  Haskell,  pp.  294,  296,  304 
Norfolk  and  Western  Railway  Company  vs.  Nuckols,  p.  238 
Nugent  vs.  Cudahy  Packing  Company,  pp.  224,  262 

O'Connell  vs.  Smith,  pp.  219,  220 

O'Keefe  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  247 
Oleson  vs.  Maple  Grove  Coal  and  Mining  Company,  p.  224 
Olson  vs.  Hanford  Produce  Company,  pp.  224,  261,  262 
Owens  vs.  Norwood-White  Coal  Company,  p.  229 

Parker  vs.  Hannibal  and  St.  Joseph  Railway  Company,  p.  240 
Patton  vs.  Central  Iowa  Railway  Company,  pp.  224,  268,  269 
People  vs.  Williams,  p.  300 
Perigo  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

259,  261,  262,  266 
Peterson  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

pp.  218,  232 
Peterson  vs.  Whitebreast  Coal  and  Mining  Company,  pp.  230,  232 
Pieart  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

264,  265,  266 
Pierce  vs.  Central  Iowa  Railway  Company,  pp.  243,  244 


318  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

Pierson  vs.  Chicago  and  Northwestern  Railway  Company,  pp.  222, 

253,  254,  256 
Pike  vs.  Cedar  Rapids  and  Marion  Railway  Company,  pp.  219,  220, 

251,  254 
Phinney  vs.  Illinois  Central  Railroad  Company,  p.  256 
Pluckham  vs.  American  Bridge  Company,  p.  270 
Poli  vs.  Numa  Block  Coal  Company,  pp.  229,  232,  263,  264,  268 
Potter  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  pp. 

244,  245 
Powell  vs.  Fall,  p.  210 
Priestley  vs.  Fowler,  pp.  208,  209,  210,  212,  214,  216,  226,  227,  235, 

237,  238,  239,  267,  276 
Purcell  vs.  Chicago  and  Northwestern  Railway  Company,  p.  248 
Pyne  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  pp. 

234,  235,  243,  244 

Reed  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  254,  255 
Rietveld  vs.  Wabash  Railroad  Company,  p.  247 
Rose  vs.  Des  Moines  Valley  Railway  Company,  p.  250 
Rusch  vs.  City  of  Davenport,  pp.  215,  218 
Russell  vs.  Hudson  River  Railroad  Company,  p.  238 
Ryan  vs.  Cumberland  Valley  Railroad  Company,  pp.  228,  237 
Rylands  vs.  Fletcher,  p.  210 

St.  Louis  and  San  Francisco  Railway  vs.  Mathews,  pp.  210,  297 
Sankey  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company,  p. 

224 
Scagel  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 

250,  251 
Schaub  vs.  Hannibal  and  St.  Joseph  Railway  Company,  pp.  213,  238 
Schminkey  vs.  Sinclair  and  Company,  p.  229 
Schroeder  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  245 
Scott  vs.  Iowa  Telephone  Company,  p.  218 
Sedgwick  vs.  Illinois  Central  Railway  Company,  pp.  249,  254 
Shea  vs.  Reems,  p.  226 
Shebeck  vs.  National  Cracker  Company,  pp.  217,  261,  262 


TABLE  OF  CASES  CITED  319 

Sherman  vs.  Western  Stage  Company,  p.  247 

Short  vs.  Fort  Dodge  Light  and  Power  Company,  p.  252 

Sidwell  vs.  Economy  Coal  Company,  p.  217 

Sipes  vs.  Michigan  Starch  Company,  p.  264 

Slaats  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  p. 
243 

Sloan  vs.  Central  Iowa  Railway  Company,  p.  241 

Smith  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  245 

Smith  vs.  Humeston  and  Shenandoah  Railway  Company,  p.  243 

Smith  vs.  Keal,  p.  226 

Spaulding  vs.  Chicago,  St.  Paul  and  Kansas  City  Railway  Com- 
pany, p.  254 

Sprague  vs.  Atlee,  pp.  251,  252 

Spring  Valley  Coal  Company  vs.  Patting,  p.  264 

Stanley  vs.  Cedar  Rapids  and  Marion  City  Railway  Company,  pp. 
250,  252 

State  vs.  Clausen,  pp.  293,  296,  297,  298,  299,  300,  303,  304 

State  vs.  Mann,  p.  239 

State  vs.  Thomas,  p.  299 

State  vs.  Creamer,  pp.  293,  294,  296,  298,  299,  300 

Stephenson  vs.  Sheffield  Brick  and  Tile  Company,  pp.  220,  264 

Stockwell  vs.  Chicago  and  Northwestern  Railway  Company,  p.  218 

Stoeckel  vs.  Great  Western  Cereal  Company,  pp.  253,  270 

Stomne  vs.  Hanford  Produce  Company,  pp.  224,  256,  266 

Stoutenburgh  vs.  Dow,  Gilman,  Hancock  Company,  p.  265 

Stroble  vs.  Chicago,  Milwaukee  and  St.  Paul  Railway  Company,  pp. 
242,  243 

Strong  vs.  Iowa  Central  Railway  Company,  pp.  233,  254,  266 

Struble  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  232 

Sullivan  vs.  Mississippi  and  Missouri  Railroad  Company,  pp.  223, 
228,  230,  233,  236,  237,  238,  239,  267,  272,  276 

Sutton  vs.  Des  Moines  Bakery  Company,  p.  263 

Taylor  vs.  Star  Coal  Company,  pp.  216,  253,  270 

Tenant  vs.  Golding,  p.  210 

Thayer  vs.  Smoky  Hollow  Coal  Company,  p.  270 


320  WORK  ACCIDENT  INDEMNITY  IN  IOWA 

The  Max  Morris,  p.  258 

Theleman  vs.  Moeller,  p.  234 

Thoman  vs.  Chicago  and  Northwestern  Railway  Company,  p.  253 

Thomas  vs.  Quartermaine,  pp.  214,  259,  267,  270 

Tobey  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  220 

Tonawanda  Railroad  Company  vs.  Munger,  p.  209 

Trcka  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, pp.  216,  234 

Troughear  vs.  Lower  Vein  Coal  Company,  p.  235 

Turberville  vs.  Stamp,  p.  209 

Twining  vs.  New  Jersey,  p.  295 

Tyrrell  vs.  Cain,  p.  264 

Van  Horn  vs.  People,  p.  297 

Verlin  vs.  United  States  Gypsum  Company,  pp.  220,  264,  266,  269 

Vindicator  Consolidated  Gold  Mining  Company  vs.  Firstbrook,  p. 

240 
Vohs  vs.  Shorthill,  pp.  231,  232 
Vyce  vs.  Chicago,  Burlington  and  Quincy  Railway  Company,  p.  221 

Wahlquist  vs.  Maple  Grove  Coal  and  Mining  Company,  pp.  224,  266, 
270 

Watson  vs.  Dilts,  p.  221 

Way  vs.  Chicago  and  Northwestern  Railway  Company,  pp.  216,  263 

Wells  vs.  Burlington,  Cedar  Rapids  and  Northern  Railway  Com- 
pany, p.  262 

Whitsett  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
p.  256 

Wilder  vs.  Great  Western  Cereal  Company,  pp.  223,  224,  261 

Wilkins  vs.  Omaha  and  Council  Bluffs  Railway  Company,  pp.  247, 
248 

Williams  vs.  Galveston,  p.  299 

Wilson  vs.  Merry,  pp.  212,  229 

Winslow  vs.  Commercial  Building  Company,  pp.  217,  229,  230 

Woodrop-Sims  vs.  Jones,  p.  258 

Woolf  vs.  Mauman  Company,  p.  262 


TABLE  OF  CASES  CITED  321 

Wright  vs.  Illinois  and  Mississippi  Telegraph  Company,  pp.  246, 
247,  257 

Yeager  vs.  Chicago,  Rock  Island  and  Pacific  Railway  Company, 

p.  247 
Yick  Wo  vs.  Hopkins,  p.  298 

Youll  vs.  Sioux  City  and  Pacific  Railway  Company,  pp.  262,  263 
Young  vs.  Burlington  Wire  Mattress  Company,  pp.  216,  219 

Ziegler  vs.  Danbury  and  Norwich  Railway  Company,  p.  240 


INDEX 


INDEX 


Abinger,  Chief  Baron,  opinion  of,  26,  27 ; 
reference  to,    37,   211 

Accident  insurance,  6 ;  working  of,  in  Ger- 
many, 96-102  (see  also  Insurance,  State 
insurance,    etc.) 

Accidents,  need  of  indemnity  for,  1-10;  num- 
ber of  deaths  and  injuries  caused  by,  1, 
2 ;  unavoidable  character  of,  2-4 ;  distri- 
bution of  cost  of,  5-10;  71-78;  depend- 
ents of  victims  of,  7,  8 ;  deaths  and  in- 
juries caused  by,  in  Iowa,  8,  9 ;  basis  of 
system  of  indemnity  for,  11;  beginning 
of  importance  of  problem  of,  11;  reasons 
for  restricting  master's  liability  for,  14, 
15;  cause  of,  52,  54,  55;  proportion  of, 
for  which  indemnity  is  provided,  71,  72, 
146,  147 ;  investigations  relative  to 
amounts  of  indemnity  for,  73-76;  delay 
and  uncertainty  in  securing  indemnity 
for,  78-81;  effect  of  liability  system  on 
prevention  of,  86-89 ;  relative  number  of, 
88,  89 ;  shifting  of  costs  of,  to  consumers, 
92 ;  systems  of  indemnity  for,  abroad, 
92-106;  comparison  of  indemnity  for,  in 
England  and  Germany,  102-106;  records 
of,  108,  109;  schedules  of  indemnity  for, 
122-125,  161,  162,  186-191;  burden  of 
indemnity  for,  128,  180;  reports  of,  130, 
131,  192;  effect  of  indemnity  for,  in  Ger- 
many, 137;  effect  of  indemnity  laws  on 
prevention  of,  153,  154;  investigation  of 
records  of,  157,  158 ;  failure  of  stock 
company  insurance  to  prevent,  168;  dis- 
tribution of  cost  of  indemnity  for,  175 ; 
prevention  of,  177;  incentive  to  preven- 
tion of,  188;  cost  of,  to  State,  196; 
standards  of  legislation  for  prevention  of, 
198-202;  collection  of  data  relative  to, 
198-200    (see  also  Injuries) 

Actuary,   necessity  of  services  of,   195 

Adjusters,  salaries  of,  158;  reduction  of 
number  of,  174;  reference  to,  175 

Administration  of  indemnity  laws,  115,  129, 
130;  provisions  of  Iowa  bill  relative  to, 
163,  164;  cost  of,  173;  standards  of  leg- 
islation relative  to,   192-196 

Administrative  boards,  table  relative  to,  130; 
power  of,  to  make  awards,  141,  142 

Admiralty    law,    56 


Advertising,  lack  of  need  of,  173;  reference 
to,    175 

Affirmative  election,   171 

Agriculture,  hazards  of,   183 

Air  brakes,  88 

Alabama,  240 

Alberta,    303 

Alderson,  Baron,  37 

Alien  dependents,  exclusion  of,   145,   165 

Allegheny  County  (Pennsylvania),  work  ac- 
cidents in,  7,  73 

Ambulance  chasers,  82,  154 

America,  beginning  of  work  accident  prob- 
lem in,  11;  construction  of  fellow-servant 
rule  in,  29  ;  modification  of  fellow-servant 
rule  in,  37 ;  relative  number  of  work  ac- 
cidents in,  88,  89;  experience  of,  167 

American  Federation  of  Labor,  167,  168 

Appanoose  County,   79 

Appeal,  provisions  of  Iowa  bill  relative  to, 
164,   165 

Arbitration,  requirement  for  compulsory,  197 

Arbitration  Committees,  provisions  of  Iowa 
bill  relative  to,  164,  165;  expenses  of, 
195;   work  of,   197,    198 

Arbitrator,   fees  of,   164,   197 

Archer,  William  C,   acknowledgment  to,  x 

Arizona,   112,   113-118,   119,   120,   122,  123, 

124,  125,    128,   132,   134,   169,   240,   280, 
281,  284,  288 

Arkansas,    240,    258 
Assessment  plan,  advantages  of,  174 
Assumption  of  risk   (see  Risk) 
Attachment,  exemption  of  indemnities  from, 

125,  162 

Attorneys,  proportion  of  indemnity  money 
received  by,  81-84;  fees  of,  132,  133,  134, 
158,   164,   165,   166,   197 

Auditor   of   State,    157 

Austria,  workmen's  insurance  in,  93 ;  refer- 
ence  to,    303 

Automatic  coupler  law,  violation  of,  20,  65, 
66 

Automatic  couplers,    88 

Awards,  power  to  make,  141,  142;  making 
of,  by  Arbitration  Committee,   164 


Baden,   100 
Bake   shops,    201 


325 


326 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


Baldwin,  W.  W.,  156,  198;  minority  re- 
port  of,    165,    166 

Banks,    contributions   by,    138 

Bavaria,    100 

Beck,   Joseph  M.,   opinion   of,   42 

Belgium,  workmen's  compensation  in,  93 ; 
reference  to,  303 

Belt  shifters,  omission  of,  20;  reference  to, 
88 

Bentham,   Jeremy,   disciples  of,   14 

Bettendorf,  J.   W.,   305 

Bill  of  Rights,  construction  of  guarantees 
of,  136;  guarantees  in,  144;  reference 
to,  155 

Billings,  P.  S.,   157 

Birrell,    Mr.,    statement   by,    37 

Blackstone,    14 

Boiler  inspection,   193 

Boone,    156 

Bramwell,   Lord  Justice,   13 

Bridges,  building  of,  119 

British  colonies,  workmen's  compensation 
in,  93 

British  Columbia,  303 

British  Home  Office,  37 

British  Workmen's  Compensation  Act,  94, 
119,   120,   149,   184 

Building  operations,  modification  of  con- 
tributory negligence  relative  to,  56 ;  ref- 
erence to,    119 

Bundesrath,    100 

Burlington,    158 

Burlington  Railway,  156 

Burlington  Voluntary  Relief  Department, 
45-48,    246 

Business  enterprise,  effect  of  employers'  lia- 
bility on,  15;  burden  on,  26;  alleged  ne- 
cessity of  fellow-servant  rule  for  protec- 
tion of,  34,  36 

California,  107,  112,  113,  114,  115,  116, 
117,  118,  119,  121,  122,  123,  124,  125, 
129,  130,  131,  132,  146,  150,  151,  152, 
169,    188,    195,   240,   280,   281,   284,   288 

Canada,    165 

Cape  of  Good  Hope,  303 

Capital,  change  of  attitude  toward  inter- 
ests of,   36 

Care,  determination  of  reasonable,  19 ; 
common  usage  not  proof  of,  20;  definitive 
standard  of  reasonable,  20;  lack  of  or- 
dinary, 35  ;  duty  of  employer  to  exercise, 
48,  49 ;  character  of,  demanded  of  em- 
ployees, 49,  50;  establishment  of  fact  of 
due,  52 ;  lapses  of,  52 ;  character  of  or- 
dinary, 59 
Carnage  of  peace,   4 


Carriers,    damages   paid  by,    137 
Cedar  Rapids,   158 
Chicago,   conference  at,   158 
Child  labor  law,  193 

Children,    forcing    of,    into    unsuitable    em- 
ployments,  8 ;   act  forbidding  employment 
of,   60 ;   assumption  of  risk  by,   60 
City  ordinance,   violation  of,   20 
Civil  service,    193 
Civil   War,   casualties  in,   2 
Claim   adjuster,    154 
Claim  agent,  82 

Claims,  determination  of,  112,  132,  133; 
reports  of  settlement  of,  129 ;  adjudica- 
tion of,  131-134;  validity  of,  142;  pro- 
visions of  Iowa  bill  relative  to  adjudica- 
tion of,  164,  165;  provisions  of  minority 
report  relative  to,  166;  examiner  of,  195; 
standards  for  adjudication  of,  196-198 
Clark,  Dan  E.,  acknowledgment  to,  xi 
Clarkson,    John   T.,    acknowledgment  to,   x; 

reference   to,    156,    158 
Classifications,    grounds    for,    139 ;    determi- 
nation of,  180;  reference  to,  192,  195 
Clay    mine    operators,    180 
Clay   mines,   201 
Clay    works,     modification    of    contributory 

negligence  relative  to,  56 
Clerks,  193 

Coal   mine   operators,    147 
Coal   miners,    121 
Coal  mines,   amount  of  air  in,   20 ;   workers 

in,   112;   reference  to,   127,   151,  240 
Coal  mining,  139,  199 
Coal    operators,    179,    180 
Coal  Operators'  Association   (Iowa),   194 
Co-employees,  injuries  caused  by  negligence 
of,    25 ;   establishment   of  rule  relative  to 
injuries    caused    by,    26;    negligence    of, 
33,  34;  injuries  caused  by,  on  railroads, 
38-48 
Co-employment,    judicial    statement    of    doc- 
trine of,  29 
Colorado,  240,  280 
Commissioner  of  Insurance,   126 
Commissioner    of    Labor,    126 
Commissions,    appointment   of,    107 ;    reports 
of,  107;  work  of,  108,  111;  shortcomings 
of   reports   of,    110;    legislation   based  on 
recommendations    of,    111;    recommenda- 
tions of,  111;  difficulty  confronting,   120, 
154;    administration   by,    129;    investiga- 
tions by,  154,  155;  list  of,  280 
Common   carriers,   liabilities  of,    15 
Common  law,  11,  12,  13,  14,  15,  16,  18,  25, 
37,  44,  48,  52,  54,  55,  57,  60,  62,  67,  89, 


INDEX 


327 


101,   121,    122,    135,   138,    139,   141,   146, 
151,   154,  160,   170,   171,  191,  240 
Common  usage,    19,   20 

Commons,   John   R.,   acknowledgment  to,   xi 
Compensation,    impossibility    of,    in    certain 
cases,   5;   basis  of  recovery   of,   112;   con- 
ditions justifying,  119,  120;  schedules  of, 
122-125,  161,  162;  responsibility  for  pay- 
ment of,    125-128;   relative   cost   of  liabil- 
ity   insurance    and,     148 ;    exemption    of, 
162;  schedule  of,  in  minority  report,  165; 
desirability   of   compulsory   plan   of,    169- 
171;    standards  of  legislation  relative   to 
scale  of,  186-191;  method  of  paying,  191 
(see  also  Indemnity) 
Compensation  acts,  number  of,  adopted,  111 
Compensation  insurance,  rates  of,   150   (see 
also    Insurance,    Mutual    insurance,    etc.) 
Compensation  plan,  statement  of,  92 ;  coun- 
tries adopting,  93  ;  workings  of,  in  Great 
Britain,   94-96 
Competition,  effects  of,  175,   176;  reference 

to,   178 
Compulsion,  question  of  election  or,  169-172 
Compulsory   insurance,   advantages  of,   172- 

180 
Compulsory    plan    of    indemnity,    140,    141, 
142;    constitutionality    of,    143,    144;    ef- 
fectiveness of,    147;   desirability  of,    169- 
171 
Congress,  compensation  act  in,  107 
Connecticut,   280 

Constitution   of   Iowa,    alleged   violation   of, 
39,    40;    law  at  time  of  adoption   of,    170 
Constitution   of  United   States,    alleged   vio- 
lation of,   39,  40 
Constitutional     questions,     investigation     of, 
110;    difficulty  of  commissions  in  connec- 
tion   with,    120;    discussion    of,    134-144; 
difference  of  opinion  on,  169,  170 
Construction  work,   201 

Consumers,  taxing  of,  to  pay  for  work  ac- 
cidents, 6 ;  cost  of  production  borne  by, 
92,  178 ;  cost  of  accidents  borne  by,  98, 
103;  cost  of  indemnity  shifted  to,  168, 
175,  181 
Contingent  fees,  81,  82 
Contract    of    employment,    doctrine    of,    22, 

23;  effect  of,  27,  28;  reference  to,  35 
Contracting  out  of  liability,   128,   129,   165; 

prohibition  of,    162 
Contractor,    liability    of   employer    for    inju- 
ries to  employees  of,   120 
Contracts,   restriction  of  liability  by,   45-48 ; 

reference   to,    162 
Contributory  negligence,   17,  32,  33,  58,  63, 
67,    146,    147,    160,    171;    discussion    of, 


48-57;  instances  of,  50,  51;  prOttdSN  III 
cases  involving,  51,  52;  recovery  defeat- 
ed by,  52;  criticism  of,  52-56;  statutory 
modification  of,  56,  57;  repeal  of  defense 
of,   LSI 

Contributory   Negligence   Act,    Iowa,   57 

Contributory    Negligenee    Amendment)    69 

Cook  County  (Illinois),  work  accidents  in, 
74,    77,    79,    80,    108 

Corporations,  growth  of,  25 ;  exemption  of, 
from  liability,  29 ;  disregard  of  safety 
by,   88 

Co-servants,  determination  of  who  are,  33 

Co-service,  judicial  statement  of  doctrine 
of,  29 

Council    Bluffs,    158 

County  Attorney,  166 

County  medical   relief,    165 

Court  of  Appeals,   95 

Court  review,  provisions  for,  132,  133,  111, 
197,  198 

Courts,  inability  of,  to  modify  judge-made 
law,  65  ;  setting  aside  of  verdicts  by,  73  ; 
distribution  of  damages  awarded  by,  81- 
84;  administration  of  compensation  sys- 
tem by,  in  Great  Britain,  95;  inefficiency 
of  administration  by,   196,   197 

Crownhart,   C.   H.,   acknowledgment  to,   x 

Cuyahoga  County   (Ohio),  7,  77,  78,  108 

Damages,  proportion  of,  absorbed  by  fees 
of   attorneys,    109 

Dangers,  duty  of  employer  relative  to,  18, 
19,  20,  30;  assumption  of  risk  of,  23, 
24 ;  knowledge  of,  on  part  of  employee, 
50,  58-60;  habituation  to,  53;  promise  of 
employer  to  remove,   62,  63 

Dangerous  employments,  list  of,  119 

Davenport,    158 

Dawson,  Miles  M.,  168,  304,  305 

Deaths,  number  of,  caused  by  work  acci- 
dents, 1,  2 ;  failure  to  record,  2 ;  indem- 
nity for,  73-76,  118,  122,  123,  186,  187, 
190;  compensation  for,  in  Great  Britain, 
94-96;  indemnity  for,  in  Germany,  96- 
102;    compensation   for,   in   Iowa,    161 

Decisions,    conflicts  of,    17 

Deemer,   Horace  E.,   opinion  by,   249,   260 

Defenses,   list   of,   abrogated,    114 

Delaware,   280 

Delay  and  uncertainty  of  employers'  lia- 
bility   system,    78-81 

Denmark,  workmen's  compensation  in,  93 ; 
reference    to,    303 

Department  of  service,  30,   32,   33 

Dependents,  effect  of  accidents  on,  7,  8, 
77,  78 ;  amount  of  indemnity  received  by, 


328 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


73-76,  118;  cost  of  work  accidents  borne 
by,  77;  compensation  to,  in  Great  Brit- 
ain, 94-96;  compensation  to,  in  Germany, 
96-102;  reference  to,  108;  schedules  of 
compensation  to,  123-125,  161,  162,  165, 
186-191;  exclusion  of  non-resident  alien, 
145;  proportion  of  compensation  received 
by,  158 

Deposits,  guarantee  of,  138 

Des   Moines,    157,    158 

Disability,  amount  of  indemnity  for,  73-76, 
116,  117;  compensation  for,  in  Great 
Britain,  94-96;  indemnity  for,  in  Ger- 
many, 96-102 ;  schedules  of  indemnity 
for,  122-125,  161,  162,  186-191;  rec- 
ords of,  in  Iowa,  157;  reference  to,  181, 
198 

Discipline,    necessity   of,    87 

Diseases,    industrial,    185 

Dismissal,   fear  of,   65 

Disputes,  settlement  of,  95,  96,  100,  101, 
131,    197 

District  Court,    162,   197 

District  of  Columbia,  modification  of  con- 
tributory negligence  in,  56 

Dogs,  taxation  of  owners  of,   138 

Domestic  servants,  exclusion  of,  from  in- 
demnity,   112,    138,    183,    184 

Downey,  E.  H.,  history  of  labor  legislation 
in  Iowa  written  by,  vii ;  author's  preface 
by,  ix 

Downey,  Mrs.  E.  H.,  acknowledgment  to,  xi 

Dubuque,    158 

Due  process  of  law,  discussion  of,  135-138; 
reference    to,    170 

Dust    removal,    200 

Election,  provisions  for,  in  recent  legisla- 
tion, 114,  120-122;  equality  under  system 
of,  139  ;  objections  to  provisions  for,  145- 
148;  provisions  for,  in  Iowa  bill,  160; 
question  of  compulsion  or,   169-172 

Electricity,  care  in  handling,   19 

Emery,    James    A.,    168,    303 

Emery,    R.    D.,    305 

Emperor   of   Germany,    100 

Employees,  theory  of  equality  of  employer 
and,  14;  principles  governing  relations 
of  employer  and,  15,  16;  duties  of  em- 
ployer relative  to  safety  of,  18-20;  pro- 
tection of,  while  in  scope  of  employment, 
20;  violation  of  statutes  for  protection 
of,  20,  61 ;  ordinary  risks  assumed  by,  23, 
24;  exemption  of  liability  of  corporation 
to,  29;  authority  of,  as  vice-principals, 
31 ;  effect  of  fellow-servant  rule  on  ac- 
tions of,   33,   34,   35,  36;   control  of  acts 


of,  by  employer,  36;  liability  for  accidents 
to,     on    railways,     38-48;     relief    depart- 
ments  for,    on   railways,    45-48 ;    contribu- 
tory negligence  of,  48-57  ;  care  demanded 
of,    49,    50;    violation    of    rules    by,    51; 
freedom   from   contributory   negligence   to 
be  proved  by,   51,   52;  reasons  for  negli- 
gence of,  53,  54;  assumption  of  risk  by, 
57-69 ;     alleged     freedom    of,     to    choose 
work,   58,  64,  65,  76,   77;  knowledge  of, 
of    extraordinary    risks,    58,    59 ;    reliance 
of,    on    promise    of    employer    to    remove 
dangers,  62,  63 ;  duty  of,  to  make  repairs, 
67 ;    handicaps  of,    in   law   suit,    72,    73 ; 
effect  of  liability  system  on  relations  be- 
tween employers  and,   85 ;   interest  of,  in 
preventing    accidents,     86,     87 ;     election 
by,    114,    160;    election    denied   to,    120; 
premiums   deducted   from  wages  of,    128; 
alleged  inequalities  in  treatment  of,   138; 
option  of,   146;   legislation  unsatisfactory 
to,    156;   testimony   of,   gathered  by   Com- 
mission,   157,    159;    application    of   Iowa 
bill  to,    160;   provision  relative   to   contri- 
butions of,   162;  withholding  of  wages  of, 
prohibited,    162 ;    settlement   of   claims  of, 
164,    165;    acceptance    of    act    by,    171; 
exclusion  of  remedies  for,  172;  contribu- 
tions by,    to   relief   fund,    180-183 ;    wilful 
intention  of,   to  cause  injury,   185,    186; 
health  and  safety  of,   193,  200    (see  also 
Servant   and  Workmen) 
Employees'  benefit  associations,   82 
Employers,  theory  of  equality  of  employees 
and,    14;    principles    governing    relations 
of  employees  and,   15,   16;   duties  of,   17, 
18-22;    negligent  acts  of,   20;   determina- 
tion  of   effect   of   negligence   of,    21,    22; 
relief   of,    from   responsibility,    22 ;    effect 
of  doctrine  of  ordinary  risks  on  liability 
of,   24,  25 ;   lack  of  care  of,   expected  by 
employee,  35 ;  control  of  acts  of  employees 
by,   36;   freedom  of,  from  liability  in  case 
of    contributory    negligence,    48,    49 ;    vio- 
lation of  rules  of,  51 ;  effect  of  modifica- 
tions  of    contributory    negligence    on   lia- 
bility of,   56,   57;  effect  of  assumption  of 
risk   on   liability   of,    57,    58;    burden    of 
proof  placed  on,  58,  59,  160,  171;  viola- 
tion of  safety  laws  by,  61,  112,  122,  166, 
172 ;   promise  of,   to  remove  dangers,   62, 
63 ;   negligence  of,    65,   68 ;   responsibility 
of,    for  injuries,    72 ;   prejudice   of  juries 
against,    72 ;    advantages  of,   in  law  suit, 
73 ;    burdens   imposed  upon,    81 ;    amount 
voluntarily  paid  by,  83 ;  effect  of  liability 
system    on    relations    between    employees 


INDEX 


329 


and,  85 ;  interest  of,  in  preventing  acci- 
dents, 87,  88;  liability  insurance  of,  in 
Germany,  96-102;  comparison  of  insur- 
ance of,  in  England  and  Germany,  103- 
105;  compensation  received  from,  108; 
accident  experience  of,  109;  number  of, 
included  in  indemnity  acts,  113  ;  election 
by,  114,  160;  liability  of,  for  employees 
of  contractor,  120;  indemnity  acts  com- 
pulsory upon,  120;  effect  of  quasi-elective 
plan  on,  121,  122 ;  effect  of  permissive 
plan  of  indemnity  on,  122  ;  responsibility 
of,  for  payments  of  indemnity,  125-128; 
insurance  of  liabilities  by,  125-128;  State 
insurance  of,  127;  burden  of  accident 
indemnity  imposed  on,  128,  162,  180-183; 
contracting  out  of  liability  by,  128,  129; 
basis  for  absolute  liability  of,  135,  136; 
alleged  inequality  in  treatment  of,  138; 
freedom  of,  to  make  election,  142,  143; 
acceptance  of  quasi-elective  plan  by,  145, 
146;  effect  of  choice  of,  148;  high  cost  to, 
149 ;  loss  of  common  law  defenses  by, 
151 ;  hesitation  of,  to  accept  indemnity 
plan,  151;  reference  to,  152;  concessions 
to,  153 ;  legislation  unsatisfactory  to, 
156;  testimony  of,  gathered  by  Commis- 
sion, 157,  159;  cost  of  liability  insurance 
to,  157,  158;  application  of  Iowa  bill  to, 
160;  funeral  and  medical  expenses  paid 
by,  161 ;  settlement  of  claims  against, 
164,  165;  failure  of  placing  liability  on 
individual,  168;  acceptance  of  act  by, 
171;  exclusion  of  remedies  against,  172; 
showing  of  solvency  by,  173;  equality  be- 
tween, in  indemnity  association,  179; 
number  of,  affected  by  bill,  183 ;  law 
relative  to  intermediate,  184;  alleged  dis- 
advantage to,  because  of  indemnity  rates, 
189-191    (see  also  Master) 

Employers'  Indemnity  Association,  160,  161, 
172,  173,  187,  192,  194,  195;  provisions 
relative  to,  162,  163;  supervision  of, 
164;  membership  in,  177,  178;  sugges- 
tions relative  to,  178-180 

Employers'  insurance  associations,  provi- 
sions relative  to,   126,   127 

Employers'  liability,  abandonment  of  former 
principles  of,  1 ;  problem  of  advocates  of 
reform  in,  9;  genesis  of,  11-16;  analysis 
of,  17-70;  complicated  character  of  sub- 
ject of,  17;  sanction  of  doctrines  of,  64; 
summary  of  existing,  70;  practical  work- 
ing of,  71-91 ;  wastefulness  of  system  of, 
81-84;  cost  of  litigation  over,  to  State, 
84 ;  effect  of  system  of,  on  industrial  re- 
lations,   85,    86;    effect   of   system   of,    on 


accident  prevention,  86-89 ;  survival  of 
law  of,  in  Great  Britain,  95,  96;  reform 
movement  relativo  to,  107;  most  authentic 
information  on  working  of,  110;  advance 
on  system  of,  145;  reform  in,  in  Iowa, 
156 

Employers'  liability  cases,  conditions  at  time 
of  earliest,  13,  14;  burden  of  proof  in,  21 

Employers'  Liability  Commission  (Iowa), 
recommendation  of,  1;  reference  to,  156- 
166;  creation  of,  156;  members  of,  156, 
157;  investigations  by,  157,  158;  hear- 
ings held  by,  158,  159;  bill  endorsed  by, 
159-165;  minority  report  of,  165,  166; 
comparison  of  bill  of,  with  standards  of 
legislation,   167-202 

Employers'  liability  law,  discrediting  of,  in 
Iowa,  1;  doctrines  comprised  in,  17:  de- 
lay and  uncertainty  of,  78-81;  final  esti- 
mate of  existing,  89-91 

Employment  agencies,  193 

Employments,  number  of,  included  in  in- 
demnity acts,  112-120;  distinction  be- 
tween, 138,  139;  number  of,  included  in 
Iowa  bill,  160;  classification  of,  126; 
standards  relative  to  number  of,  included, 
183,   184 

England,  beginning  of  work  accident  prob- 
lem in,  11;  reference  to,  12,  211;  inter- 
pretation of  fellow-servant  rule  in,  29 ; 
abolition  of  fellow-servant  rule  in,  37; 
fatality  rates  in,  88;  effect  of  adoption 
of  plan  of,   152    (see  also  Great  Britain) 

English  Exchequer  Court,  case  decided  by, 
26,  27 

Equal  protection  of  law,  alleged  violation  of 
principle  of,   138-140 

Erie  County  (New  York),  work  accidents 
in,    74,   80,   108 

Establishment  premiums,   127 

Europe,  reduction  of  number  of  work  acci- 
dents in,  2 ;  accident  prevention  in,  89 ; 
experience  of,  107,  151,  154,  167;  refer- 
ence to,  112,  125,  144,  159,  168,  200, 
215,  295  ;  comparison  of  American  legis- 
lation with  that  of,  145;  progress  in 
legislation  in,  154,  155;  analyses  of  in- 
demnity laws  of,  158;  hired  labor  in,  184 

Evans,  William  D.,  opinion  of,  260 

Examiner  of   claims,    195 

Execution,  exemption  of  indemnities  from, 
125,   162 

Experts,   193 

Explosives,  proximity  to,  119 

Factories,  work  accidents  in,  8,  9 
Factory  acts,  20,   193;  violation  of,  61 


330 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


Factory  inspection,   192,  193 

Farm  laborers,  exclusion  of,  from  indemnity, 
112,  139,  183 

Farwell  vs.  Boston  and  Worcester  Railroad 
Corporation,   decision  in  case   of,   28,   29 

Fatigue,  effect  of,  4,  53 

Fault,  compensation  irrespective  of,  112, 
120,  159;  liability  without,  135-138,  170, 
172 

Federal  Commission,  169,  281 

Federal  government,  commission  appointed 
by,  107;  investigation  by  commission  ap- 
pointed by,  109 

Fellow-servant,  concurrent  negligence  of 
master  and,   33 

Fellow-servant  rule,  17,  88,  156,  160,  211; 
discussion  of,  25-48 ;  first  decision  rela- 
tive to,  26,  27;  definite  formulation  of, 
28;  judicial  statement  of,  29;  exceptions 
to,  29-33;  alleged  reasons  for,  33,  34; 
criticism  of,  33-36;  statutory  modification 
of,  36-48;  modification  of,  in  Iowa,  38- 
48;  abrogation  of,  121,  240 

Finland,  workmen's  compensation  in,  93 ; 
reference  to,  303 

Fira  escapes,  88,   193 

Fire  insurance  agents,  contributions  by,  138 

Firemen's  relief  fund,   138 

Fitch,   John,   207 

Florida,    240 

Fort  Dodge,  158 

Fourteenth  Amendment,  alleged  violation  of, 
135 

France,  workmen's  compensation  in,  93 ; 
reference  to,  169,  303 

Frankel,  Lee  K.,  168 

Franzen,    Florence,    acknowledgment   to,    xi 

Fraud,  prevention  of,  186;  standards  for 
provisions  against,  191,  192 

Freight  rates,  differences  in,  190 

French,  Nathaniel,  158 

Freund,   Ernst,   304 

Friendly  Societies,  Registrar  of,  94 

Funeral  expenses,  78,  82,  92,  96,  108,  122, 
123,  161,  165,  186,   187,  190 

Garnishment,  compensation  exempt  from, 
162 

Garretson,  A.  B.,  303,  305 

Georgia,  240,  258,  259 

Germany,  work  accidents  in,  2  ;  cause  of 
work  accidents  in,  52  ;  statistics  of  work 
accidents  in,  71;  accident  prevention  in, 
72 ;  fatality  rates  on  railways  in,  88 ; 
workmen's  insurance  in,  93  ;  workings  of 
accident  insurance  in,  96-102;  compari- 
son of  indemnity  systems  of  Great  Britain 


and,  102-106;  effect  of  accident  indem- 
nity in,  137;  reference  to,  149,  169,  175, 
188,  205,  303;  effect  of  adoption  of  plan 
of,  152 ;  success  of  insurance  plan  in, 
173;  system  of  contribution  in,  181,  182; 
standards  of  accident  records  set  by,   199 

Given,  Welker,  acknowledgment  to,  x ;  ref- 
erence to,   157,   158 

Gompers,   Samuel,   303,  305 

Governor,  members  of  Commission  appointed 
by,  156,  163;  reference  to,  194 

Great  Britain,  workmen's  Compensation  in, 
93,  94-96;  comparison  of  indemnity  sys- 
tems of  Germany  and,  102-106 ;  com- 
pensation system  of,  adopted,  111;  refer- 
ence to,  125,  150,  188,  215,  303;  dis- 
satisfaction with  compensation  system  of, 
169;  experience  of,  in  insurance,  173; 
(see  also  England) 

Greece,  workmen's  compensation  in,  93 ; 
reference  to,  303 

Gross  negligence,  effect  of,  112,  115 ;  refer- 
ence to,   186 

Guards  on  machinery,  88 

Gypsum  mine  operators,   180 

Gypsum   mines,    201 

Harvesting  machinery,  201 

Hazards    (see  Risks) 

Hearings,  holding  of,  by  commissions,  110, 
157,  158,  159 

Hendel,  G.  F.,  305 

Hesse,   100 

Hibbard,   J.   M.,   305 

Holmes,  Justice,  statement  by,   137 

Hospital  expenses,  82,  96,  101,  122,  161, 
187 

House  of  Lords,   95 

Human  life,  change  of  attitude  toward  pro- 
tection  of,   36 

Human  nature,  limitations  of,  3,  4,  52-54 

Hungary,  workmen's  insurance  in,  93 ; 
reference  to,  179,  303 

Illinois,  90,  108,  109,  111,  112,  113- 
118,  119,  120,  121,  122,  123,  124,  128, 
129,  131,  132,  134,  146,  150,  151,  158, 
189,    190,    191,   240,   280,   281,   284,   288 

Imperial  Insurance  Office  (Germany),  52, 
206,  222;  statistics  gathered  by,  71; 
supervision  of  insurance  associations  by, 
99-101;  records  of,  105 

Income,  scale  of  compensation  for  loss  of, 
186-191 

Indemnity,  opportune  time  for  study  of,  1 ; 
need  of,  1-10;  distribution  of  cost  of,  5- 
10,    168;   effects  of  absence   of,    8;   basis 


INDEX 


331 


of  system  of,  in  Iowa,  11;  injustice  of 
contributory  negligence  in  system  of,  52  ; 
proportion  of  accidents  with  provision 
for,  71,  72 ;  investigations  relative  to 
amounts  of,  73-75;  lack  of,  76;  delay 
and  uncertainty  in  securing,  78-81; 
wastefulness  of  existing  system  of,  81-84; 
systems  of,  in  foreign  countries,  91,  92- 
106;  comparison  of  systems  of,  in  Eng- 
land and  Germany,  102-106;  reform 
movement  relative  to,  107;  legislation  pro- 
viding for,  in  United  States,  107-155 
attempt  of  acts  to  provide,  111,  112 
scope  of  acts  providing  for,  112-120 
various  plans  of,  adopted,  120 ;  compul- 
sory plan  of,  120,  121;  quasi-elective  plan 
of,  121,  122;  permissive  plan  of,  122; 
schedules  of  amounts  of,  122  ;  exemption 
of,  125 ;  responsibility  for  payments  of, 
125-128;  burden  of,  128;  administration 
of  systems  of,  129,  130;  effect  of,  in  Ger- 
many, 137;  inequality  in  burdens  of,  148; 
dependence  of,  on  law  of  negligence,  156; 
basis  of,  in  Iowa  bill,  159 ;  scope  of,  in 
Iowa  bill,  160;  burden  of,  in  Iowa  bill, 
162;  standard  for  principle  of,  167,  168, 
169;  addition  to  cost  of,  173;  standards 
of  legislation  relative  to  burdens  of,  180- 
183 ;  injuries  for  which  provision  ig 
made  for,  184-186;  need  of  proportionate, 
188,  189;  comparison  of  rates  of,  189, 
190  (see  also  Compensation) 

Indemnity  Association  (see  Employers'  In- 
demnity Association) 

Indemnity  laws,  estimate  of,  144-155;  in- 
adequacy of,  145;  objections  to  elective 
features  of,  145-148;  defects  in  insur- 
ance features  of,  148-153;  effect  of,  on 
accident  prevention,  153,  154;  adminis- 
tration of,  154;  study  of,  157,  158;  an- 
alyses of,  158;  some  standards  for,  167- 
202 

Indiana,  railway  liability  act  in,  41 ;  modi- 
fication of  contributory  negligence  in,  56; 
reference  to,  240,  258 

Industrial  Accident  Board   (Michigan),   126 

Industrial  accident  boards,  failure  to  es- 
tablish,   154 

Industrial  Commission  of  Iowa,  160,  162, 
163,  178,  187;  provisions  relative  to, 
163;  duties  of,  in  settling  claims,  164, 
165;  functions  of,  192,  193;  appointment 
of  members  of,  193,  194;  term  of  mem- 
bers of,  194,  195;  necessity  of  adequate 
support  for,  195,  196 ;  determination  of 
claims  by,  197,  198 ;  collection  of  data 
by,   199,  200;   safety  regulations  by,  201 


Industrial  groups,  semi-autonomous,  176, 
178,  179,  180 

Industry,  blood  tax  of,  5;  inherent  hazards 
of,  22 

Injuries,  number  of,  caused  by  work  acci- 
dents, 2;  failure  to  record,  2;  principle! 
governing  responsibility  for,  12;  cate- 
gories of  unintended,  12;  determination 
of  proximate  cause  of,  21,  22,  33  ;  as- 
sumption of  risk  of,  24;  causing  of,  by 
co-employees,  25;  effect  of  fellow-servant 
rule  in  preventing,  33,  34,  35,  36;  scope 
of  Iowa  railway  liability  act  relative  t<>, 
41-44;  reference  to,  69;  existing  system 
of  indemnity  for,  70;  amount  of  indem- 
nity for,  73-76;  delay  and  uncertainty  in 
securing  indemnity  for,  78-81  ;  compen- 
sation for,  in  Great  Britain,  94-96;  in- 
demnity for,  in  Germany,  96-102;  basis 
of  recovery  of  compensation  for,  112; 
list  of,  included  in  indemnity  provisions, 
113;  conditions  justifying  compensation 
for,  119,  120;  schedules  of  indemnity 
for,  122-125,  161,  162,  186-191;  report 
of,  130,  131  ;  proportion  of,  indemnified, 
146,  147,  271;  records  of,  in  Iowa,  157; 
basis  of  indemnity  for,  in  Iowa  bill,  159; 
rules  for  prevention  of,  163;  burden  of 
indemnity  for,  180-183;  standards  of 
legislation  relative  to  inclusion  of,  184- 
186    (see   also   Accidents) 

Inn-keepers,   liabilities  of,    15 

Inspection,  duty  of  employer  relative  to, 
18,   30;   necessity  of,   87 

Inspectors,  193 

Insurance,  lack  of,  among  workmen,  7 ; 
provisions  for,  125-128;  cost  of,  145;  de- 
fects in  statutes  relative  to,  148-153;  pro- 
visions of  Iowa  bill  relative  to,  162,  163; 
provision  for,  in  minority  report,  165; 
need  of  compulsory,  168,  169-171,  202; 
standards  of  legislation  relative  to,  172- 
180;  overhead  expenses  of,  175;  exemp- 
tion from,  for  railways,  177  (see  also 
State   insurance,    mutual   insurance,   etc.) 

Insurance  associations,  operation  of,  in 
Germany,   97-102 

Insurance  companies  (see  Liability  Insur- 
ance  Companies) 

Insurance  Institution  of  Norway,   106 

Insurance  plan,  92 ;  statement  of,  93  ; 
countries  adopting,  93 ;  working  of,  in 
Germany,  96-102 

Insurance  rates,  relative  level  of,  150; 
variations  in,  153   (see  also  Premiums) 

Insurance  systems,  adoption  of,  in  five 
States,   111 


332 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


Intermediate  employers,   184 

International  Harvester  Company,  168,  201, 
207 

Intoxicants,  sale  of,  138 

Intoxication,   166,   185 

Interurban  railways,    39 

Investigations  by  commissions,   108-111 

Investigations  by  Iowa  commission,  157, 
158 

Iowa,  discrediting  of  employers'  liability  law 
of,  1;  reference  to,  4,  108,  111,  258,  259, 
280,  281;  deaths  and  injuries  from  work 
accidents  in,  8,  9 ;  basis  of  system  of 
accident  indemnity  in,  11;  need  of  analy- 
sis of  employers'  liability  in,  17 ;  importa- 
tion of  fellow-servant  rule  into,  29;  ap- 
plication of  rule  of  vice-principalship  in, 
30,  31;  attitude,  toward  department  of 
service  rule  in,  32,  33 ;  earliest  decision 
relative  to  fellow-servants  in,  34;  railway 
liability  act  in,  38-48 ;  modification  of 
contributory  negligence  in,  56,  57;  doc- 
trine of  assumption  of  risks  in,  61,  62; 
modification  of  assumption  of  risk  in,  65- 
69 ;  summary  of  employers'  liability  law 
in,  70,  89-91;  ground  for  recovery  under 
law  in,  71 ;  working  of  employers'  lia- 
bility in,  71-91;  absence  of  data  in,  72; 
cost  of  accidents  in,  borne  by  victims,  76 ; 
laws  in,  favorable  to  workmen,  76;  delay 
in  securing  indemnity  in,  79 ;  rights  of 
injured  workmen  in,  80,  81;  wastefulness 
of  indemnity  system  in,  83,  84;  increase 
in  employers'  liability  premiums  in,  84; 
situation  in,  relative  to  employers'  lia- 
bility, 107 ;  inadequacy  of  employers' 
liability  law  in,  156;  Employers'  Liability 
Commission  of,  156-166;  accident  records 
in,  157;  competition  of  products  of,  175; 
alleged  disadvantage  to  employers  in,  189- 
191 

Iowa  Bureau  of  Labor  Statistics,  incom- 
pleteness of  records  of,  8,  9 ;  reference  to, 
192,  193,  198 

Iowa  Federation  of  Labor,  1,  66,  156,   194 

Ireland,   37 

Italy,  workmen's  compensation  in,  93  ;  refer- 
ence to,   303 

Jefferson,  Thomas,  teaching  of,  14;  inau- 
gural address  of,  211 

Johnson,   Eliza,   acknowledgment  to,   xi 

Judges,  inherited  tendencies  of  early,  14; 
attitude  of,  toward  liability  of  master, 
36;  lack  of  fitness  of,  for  administration, 
196 

Juries,   prejudice  of,   against  employers,   72 


Jury,  ability  of,  to  decide  questions,  55 
Jury  trial,   provisions  for,   132,   133 ;   refer- 
ence  to,    134,    166;    alleged   violation    of 
right  of,   140-144;   constitutional  guaran- 
tee of,  198;  pretext  for,  taken  away,  197 

Kansas,  112,  113-118,  119,  120,  121,  122, 
123,  124,  125,  126,  129,  131,  132,  134, 
145,  150,  152,  189,  190,  191,  240,  280, 
281,  284 

Kellogg,  Prank  B.,  304 

Knapp,  E.  V.,  305 

Labor  Legislation  in  Iowa,  History  of,  vii, 
i* 

Ladd,  Scott  M.,  opinion  of,  230,  248 

Laissez  faire,  effect  of  movement  of,  13 ; 
reference  to,  16,  64,  177 ;  philosophy  of, 
56 

Law,  due  process  of,  135-138,  170;  changes 
in,   136;   equal  protection  of,  138-140 

Lawyers,  profit  of,  out  of  employers'  lia- 
bility cases,  81-84,  109 

Lee,  W.  G.,  303,  305 

Legislation,  recent,  in  United  States,  107- 
155;  general  character  of  recent,  111, 
112;  problem  of  insuring  effectiveness  of, 
120;  restrictions  on  scope  of,  138 

Levy,  compensation  exempt  from,  162 

Liability,  contracting  out  of,  45-48,  68,  69, 
94,  128,  129,  162;  abrogation  of,  114; 
provisions  of  minority  report  relative  to, 
165;  exemption  from,  172  (see  also  Em- 
ployers' liability) 

Liability  companies,  fate  of,  at  stake,  152 ; 
service  rendered  by,  153 ;  lack  of  data  on 
part  of,  174 

Liability  insurance,  necessity  of,  84 ;  pro- 
visions for,  125-128 ;  relative  cost  of 
compensation  and,  148 ;  defects  in  statutes 
relative  to,  148-153;  wastefulness  of  com- 
petitive, 149,  150,  177;  rates  of,  150; 
present  stage  of,  153;  study  of,  157,  158; 
variation  in,  190,  191  (see  also  Insur- 
ance, etc.) 

Liability  Insurance  Companies,  amount  of 
indemnity  money  taken   by,    82,   83 

Lien,  exemption  of  indemnities  from,  125 ; 
reference  to,   162 

Link-and-pin  couplers,  19 

Litigation,  17;  wastefulness  of,  81-84;  cost 
of,  to  State,  84,  196;  amount  of,  in  Great 
Britain,  95,  96;  absence  of,  in  Germany, 
100,  101 ;  attempts  to  minimize  delay 
and  expense  of,  131;  costs  of,  158,  173; 
small  outlays  for,  174 ;  necessity  of  elimi- 
nating, 196-198 


INDEX 


XY.l 


Locomotives,  operation  of,  with  link-and-pin 

couplers,  19 
Logging,    119 
Loss,  distribution  of,  71-78 
Louisiana,   280 
Lowell,  James  A.,   304 
Luxemburg,    workmen's    insurance    in,    93 ; 

compulsory    laws    of,    159;    reference    to, 

303 

McAunich  vs.  Mississippi  and  Missouri  Rail- 
road Company,  decision  in  case  of,  39,  40 

McClain,   Emlin,   opinion   of,   251,   263,  264 

Machine  guards,  omission  of,  20;  removal 
of,  186 

Machine  industry,  revolution  wrought  by, 
16 

Machinery,  complicated  character  of,  3  ;  dif- 
ficulty in  adapting  human  nature  to,  3, 
4 ;  increase  of  accidents  with  development 
of,  11;  effect  of  operation  of,  53,  54; 
act  forbidding  operation  of,  by  children, 
60;  reference  to,  119 

Magna  Charta,  136,  155,  295 

Maine,  107,  280 

Malingering,   125,  187 

Manhattan  Borough,  work  accidents  in,  74, 
108 

Manufacturers,  bill  defeated  by,  16;  refer- 
ence to,  147,  175,  179;  accident  records 
of,  in  Iowa,  157 

Manufacturers,  National  Association  of, 
opinion  of  employers'  liability  by,  90; 
reference  to,  168 

Manufacturers'  Association,  Iowa,  1,  66, 
156,    194 

Manufacturing,  119 

Marginal  utility  theory,   17 

Market    facilities,    differences   in,    190 

Maryland,  modification  of  contributory  negli- 
gence in,  56;  reference  to,  108,  111,  112, 
113-118,    119,    122,    123,    124,    125,    127, 

128,  132,   134,   148,  240,  280,  281,  288 
Maryland  Employees'  Insurance  Act,  129 
Massachusetts,  108,  109,  110,  111,  112,  113- 

118,   119,   120,   121,   123,   124,   125,   126, 

129,  130,  131,  132,  134,  140,  141,  142, 
147,  149,  150,  151,  152,  153,  158,  159, 
176,  179,  180,  195,  211,  240,  280,  281, 
284,  288,  289 

Massachusetts  Employees'  Insurance  Asso- 
ciation, operation  of,  126,  127 

Massachusetts  Indemnity  Association,  150 

Massachusetts  Supreme  Judicial  Court,  de- 
cision by,  28 

Master,  reasons  for  restriction  of  liability 
of,  14,  15;  limitation  on  obligation  of,  to 


protect  servant,  20;  liability  of,  for  Safety 
of  servant,  22,  28;  liability  of,  for  in- 
juries inflicted  by  servants,  25;  exception 
to  rule  of  liability  of,  20;  assumption  of 
risks  due  to  negligence  of,  27  ;  non  dele- 
gable duties  of,  30;  concurrent  negligence 
of,    and    fellow-servant,    88;    attitude    of 

judges  toward  liability  of,  llll  ;  contribu- 
tory negligence  not  defense  of,  51;  re- 
sponsibility of,  for  ordinary  risks,  58; 
release  of,  from  liability  by  assumption  of 
risk,  60;  statutory  duties  of,  60  (see  also 
Employers) 

Mechanic's   lien,    184 

Mechanical  industry,  hazards  of,  2,  4,  5; 
inevitable   concomitants  of,   89 

Mecklenberg-Schwerin,   100 

Mecklenberg-Strelitz,    100 

Medical  care,  provision  for,  116;  failure  to 
provide,    145 

Medical  examination,  requirements  relative 
to,   125,   162,   191 

Medical  examiners,   fees  of,   197 

Medical  expenses,  78,  82,  92,  96,  101,  108, 
122,  161,  165,  182,  187,  190 

Michigan,  75,  76,  78,  108,  109,  111,  112, 
113-118,  119,  121,  123,  124,  125,  126, 
129,  130,  131,  132,  149,  150,  152,  173, 
176,    195,   240,   258,   280,   284,   288,   289 

Mill,  John  Stuart,  53,  212,  267 

Milwaukee,  148 

Milwaukee  County  (Wisconsin),  108 

Mine   law,    193 

Mines,  work  accidents  in,  in  Iowa,  8,  9 ; 
modification  of  contributory  negligence 
relative  to,  56 ;  fatality  rate  in,  88 ; 
emergency  exits  from,  88 

Minnesota,  6,  72,  74,  75,  80,  108,  109,  111, 
190,  191,  222,  240,  256,  272,  280,  281 

Minor,  assumption  of  risk  by,  59 

Minority  report  of  Iowa  Commission,  165, 
166 

Mississippi,  240,  258 

Mississippi  Valley,   accident  rates  in,   151 

Missouri,  190,  191,  240,  280 

Monotony,  effect  of,  53 

Montana,  112,  113-118,  119,  120,  121, 
122,  123,  124,  125,  127,  128,  129,  130, 
131,  133,  134,  140,  141,  142,  170,  240, 
280,  281,  287,  288 

Montana  Coal  Miners'  Insurance  Act,  112, 
140 

Mutual  association,  147,  168,  175,  176;  ad- 
vantages of,   174,    175,    176,    177 

Mutual  insurance,  effect  of,  150,  151;  need 
of  compulsory,  152;  bill  providing  for, 
159;  advantages  of,  172,   173,  176,  177; 


334 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


standards  of  legislation   relative   to,    177- 
180;  reference  to,  182,  189,  201 

Natural   rights   philosophy,    13,    14 

Nearing,  Scott,  investigations  by,  6 

Nebraska,    190,    191,   240,   259,   280 

Negligence,  instances  of,  20;  insufficiency 
of  proof  of,  21;  reference  to,  30,  31,  33, 
34,  35,  65,  68,  111,  112,  121,  137,  139, 
140,  160,  166,  170,  172;  concurrent,  33; 
prevalence  of,  52,  53;  causes  of,  53,  54; 
need  of  definition  of,  55 ;  rule  of  propor- 
tional, 56;  discarding  of  law  of,  90;  es- 
tablishment of  rule  of  proportional,   156 

Netherlands,  The,  workmen's  compensation 
in,  93 ;  reference  to,  303 

Nevada,  modification  of  contributory  negli- 
gence in,  56;  reference  to,  112,  113-118, 
119,  120,  122,  123,  124,  125,  133,  134, 
240,  259,  280,  281,  284,  288 

New  Hampshire,  112,  113-118,  119,  121, 
122,  123,  124,  125,  126,  129,  133,  134, 
145,  149,  150,  151,  173,  280,  281,  284, 
288 

New  Jersey,  108,  110,  111,  112,  113-118, 
119,  121,  123,  124,  125,  129,  130,  131, 
133,  134,  145,  147,  150,  152,  158,  196, 
240,  280,  284,  288 

New  South  Wales,  303 

New  York,  7,  108,  109,  111,  112,  113-118, 
119,  120,  122,  123,  124,  125,  133,  134, 
148,  158,  169,  240,  280,  281,  288;  work 
accidents  in,  74,  75 ;  distribution  of  in- 
demnity money  in,  82,  83 ;  cost  of  liti- 
gation in,  84 ;  opinion  of  Employers' 
Liability  Commission  of,  90;  Workmen's 
Compensation  Act  of,  112 

New  York  Court  of  Appeals,  reasoning  of, 
135,  170;  reference  to,  140,  142,  144, 
171,     296 

New  Zealand,   303 

Non-delegable  duties,  29,  30 

North  Carolina,   36,   240 

North  Dakota,  107,  190,  191,  240,  259, 
280 

Norway,  workmen's  insurance  in,  93,  94, 
106;  plan  of,  adopted  in  America,  127; 
effect  of  adoption  of  plan  of,  152;  suc- 
cess of  insurance  plan  in,  173 ;  reference 
to,   175,  303 

Occupational  diseases,  185 

Occupational  risks,  burden  of,  17,  22-25, 
136;  reference  to,  35,  137,  180,  181; 
analysis  of  theory  of,  92  ;  methods  of  giv- 
ing effect  to  theory  of,  92,  93  ;  indemnity 
should  be  based  on  principle  of,  167,  168; 


extension  of  principle  of,  184;  legislation 
on  principle  of,   303 

Ohio,  56,  79,  108,  111,  112,  113-118,  119, 
121,  122,  123,  124,  125,  127,  128,  129, 
130,  131,  133,  134,  140,  141,  142,  143, 
144,  149,  150,  151,  152,  153,  158,  169, 
176,   181,    188,   240,   280,  281,   288,   299 

Oklahoma,  240,  280 

Optional  system,  necessity  of  large  reserves 
under,  176 

Ore  mills,  modification  of  contributory  negli- 
gence relative  to,  56 

Oregon,   56,  240 

Ottumwa,   158 

Pacific  Coast,  accident  rates  on,  151 

Packer,   Launcelot,   158,   304 

Padrone,  184 

Pal,  A.,  305 

Passengers,  damages  for  injuries  to,  137, 
138 

Pennsylvania,  74,  280 

Pennsylvania,    University  of,    6 

Pensions,  6,  173;  provisions  for,  96,  97, 
101,  123,  150,  161,  162,  187,  191;  com- 
mutation of,   162;  reasons  for,  191 

Philippine  War,   casualties  in,   2 

Physicians,  fees  of,  165;  free  choice  of,  187 

Piece  worker,   184 

Pittsburgh,  7 

Pittsburgh  District,  wages  in,  6 ;  work  ac- 
cidents in,  75,  78 

Pittsburgh  Survey,  facts  discovered  in,  54, 
55,  73;  reference  to,  110,  207,  272 

Plaintiff,  burden  of  proof  on,  21 

Police  power,  136,  137,  138,  141,  142,  143, 
177 

Policies,   192 

Political  influence,  guarding  against,  193, 
194 

Poverty,    8 

Pratt,  Mr.,  158 

Premium  rates,  127,  149,  163 

Premiums,  deduction  of,  from  wages,  128; 
high  rates  of,  149;  absorbtion  of,  by  ex- 
penses, 150,  173 ;  adjustment  of,  152 ; 
amount  of,  in  Iowa,  157;  portion  of, 
placed  in  reserve  fund,  163;  data  for 
computation  of,  174;  treating  of,  as 
operating  costs,  175 ;  reference  to,  176, 
179,   192,   195;   determination  of,   180 

Price,  C.  W.,  201,  207 

Priestley  vs.  Fowler,  decision  in  case  of, 
26,   27,   28 

Private  liability  companies,  employers  at 
mercy   of,    149 


INDEX 


335 


Private  liability  insurance,  objection  to,  151; 

reference  to,  152;  ineffectiveness  of,  153 
Private  property,  protection  of,  13 
Production,  costs  of,  borne  by  consumers,  92 
Property,  absence  of,  among  workmen,  6,  7 ; 
taking    of,    without    due    process    of    law, 
136;  deprivation  of,  by  compensation  acts, 
143 
Protest,   necessity  of,   63 
Proximate   cause,    necessity   of   proving   em- 
ployer's negligence  to  be,   21,   22 ;    refer- 
ence   to,     33,     55;     determination     of,     in 
question   of    contributory    negligence,    49, 
51 

Quasi-elective  acts,  121,  122,  142;  consti- 
tutionality of,  143,  144;  bills  for,  156 

Quasi-elective  plan,  operation  of,  145-148; 
bill  providing  for,  159 ;  shortcomings  of, 
169;  constitutional  doubts  relative  to, 
170;  reference  to,  171 

Quebec,  303 

Queensland,   303 

Railroad  Commissioners,    198 

Railroad  companies,  liabilities  of,  for  in- 
juries to  employees,  27,  28 ;  act  relative 
to  duties  of,  39 ;  relief  departments  op- 
erated by,  45-48;  experience  of,  109 

Railroad  transportation,  139,  199 

Railway  brotherhoods,    168 

Railway  cars,  automatic  couplers  on,  20 

Railway  fellow-servant  statute,  156 

Railway  Liability  Act,  Iowa,  provision  of, 
38;  applicability  of,  39;  constitutionality 
of,  39,  40;  judicial  construction  of,  40- 
47;  employees  within  scope  of,  41-44;  at- 
tempt to  defeat  purpose  of,  45-47  ;  refer- 
ence to,  57,  68,  69 

Railway  trainmen,   representative  of,   157 

Railways,  work  accidents  on,  in  Iowa,  8,  9 ; 
abrogation  of  fellow-servant  rule  relative 
to,  37,  38;  liabilities  of,  in  Iowa,  38-48; 
modification  of  contributory  negligence 
relative  to,  56,  57;  bill  defeated  by,  66; 
fatality  rates  on,  88 ;  construction  and 
operation  of,  119;  liability  of,  137,  138; 
modifications  of  laws  relative  to  employees 
on,  156 ;  exemption  of,  from  insurance, 
177;  reference  to,  240 

Ranney,  G.  A.,  303 

Rates  of  indemnity,  comparison  of,  189,  190 

Reasonable  man,  defects  in  standard  of,  53, 
54 ;  reference  to,  55 

Rebating,  prevalence  of,  153 

Recovery,  proof  of  negligence  not  ground 
for,  21;  basis  of,  112  ;  bar  to,  166,  171 


Reform  movement,  evidences  of,  107;  re- 
sults of,  108 

Relief  departments,  operation  of,  85 

Remedies,  exclusion  of,   172 

Repairs,   duty   <>f  employers  t"   make,   67 

Reserve  fund,  163,  180;  contribution  to, 
by  State,   179 

Reserve  system,  effect  of,  174 

Reserves,   necessity  of  large,    176 

Respondeat  superior,  doctrine  of,  25,  26,  29, 
36 

Reuss-Greitz,    100 

Rhode  Island,  112,  113-118,  119.  121,  123, 
134,  125,  128,  129,  133,  134,  151,  196, 
280,  281,  284,  286,  288,  289 

Ricardo,  David,  212,  266 

Risk,  assumption  of,  32,  48,  49,  57-69,  88, 
160;  judicial  decisions  relative  to,  60, 
61  ;  doctrine  of,  in  Iowa,  61,  62  ;  criticism 
of,  64,  65 ;  statutory  modification  of,  65- 
69,   156;   abrogation  of,   121 

Risk  groups,  establishment  of,  126,  127, 
149,  163 

Risk  ratings,  127,  180,  192,  195 

Risk  tariffs,  making  of,  126,  127 

Risks,  burdens  of  occupational,  18,  22-25; 
determination  of  ordinary,  23,  24 ;  negli- 
gence of  co-employees  among  ordinary,  33, 
34,  35 ;  assumption  of  extraordinary,  58, 
66;  assumption  of  ordinary,  58;  analysis 
of  theory  of  occupational,  92 

Roosevelt,  Theodore,  opinion  of,  90 

Royal  Commission  on  Labour,  37 

Ruffin,  Chief  Justice,  35 

Rules,  duty  of  employer  relative  to,  18; 
necessity   of,    for    safety,    87 

Russell   Sage   Foundation,    168 

Russia,  workmen's  compensation  in,  93 ; 
reference   to,    303 

Russo-Japanese  War,   casualties  in,   2 

Sabath,    A.   J.,    304 

Safety,  duties  of  employer  relative  to,  18- 
20;  alleged  promotion  of,  by  fellow-servant 
rule,  35,  36;  need  of  standards  of,  154 

Safety  appliances,  adoption  of,  by  employers, 
19,  20;  need  of,  87,  88 

Safety  cages,   88 

Safety  device,  removal  of,  166 

Safety  exhibit,   194,  201,  202 

Safety  laws,  violation  of,  by  employer,  56, 
61,  112,  122,  160,  161,  166,  172;  barring 
of  recovery  for  violation  of,  60;  penalties 
for  disregard  of,  177;  standards  for,  198- 
202 

Safety  regulations,  192;  making  of,  200,  201 

Savings,  lack  of  among  workmen,   7 


336 


WORK  ACCIDENT  INDEMNITY  IN  IOWA 


Saxony,  100 

Schedules  of  compensation,  122-125,  161, 
162;  standards  of  legislation  relative  to, 
186-191 

Sehwedtman,  Mr.,   168 

Servants,  duty  of  employer  relative  to,  18, 
30;  limitation  on  obligation  of  master  to 
protect,  20;  assumption  of  risks  by,  22- 
25,  27,  58;  liability  of  master  for  in- 
juries inflicted  by,  25;  relief  of,  of  con- 
tributory negligence,  32  (see  also  Em- 
ployees) 

Settlements,  time  and  mode  of,  108;  reports 
of,  129 ;  encouragement  of  friendly,  197 

Shambaugh,  Benj.  P.,  editor's  introduction 
by,   vii ;    acknowledgment  to,   x 

Shaw,  Chief  Justice,  formulation  of  fellow- 
servant  rule  by,  28,  29;  dictum  of,  34; 
statement  by,  86,  87,  209 

Sherman,  P.  Tecumseh,  158 

Sherwin,  John  C,  opinion  of,  231,  233 

Shop-keepers,  liabilities  of,  15 

Simulation,   125,   187 

Sinclair,   R.   S.,   305 

Sioux  City,  158 

Small,  A.  J.,  acknowledgment  to,  x 

Smelters,  modification  of  contributory  negli- 
gence relative  to,  56 

Smith,  Adam,  teaching  of,  14 

Solvency,  showing  of,  149,  173 

South  Carolina,  211,  240 

South  Carolina  Court  of  Errors,  decision  by, 
27,  28 

South  Dakota,   191,  259 

Spain,  workmen's  compensation  in,  93; 
reference  to,  303 

St.ily,  John  O.,  157 

Standards  of  indemnity  legislation,   167-202 

State,  cost  of  litigation  to,  84;  cost  of  acci- 
dents to,  196 

State  aid  to  indemnity  association,  178,  179 

State  insurance,  provisions  for,  127;  refer- 
ence to,  144,  172,  189,  192,  197,  201; 
effect  of,  150,  151 ;  attempts  to  defeat, 
151 ;  need  of  compulsory,  152  ;  advantages 
of  compulsory,  172,  173;  disadvantages 
of,  176  (see  also  Insurance,  Mutual  In- 
surance, etc.) 

State  insurance  department,  173,  175,  176, 
182;  advantages  of,  174,  175 

State  insurance  fund,  139 

State  Mine  Inspectors,  193,  198 

States,  commissions  appointed  by,  107; 
recent  legislation  by,  107-155 

Statisticians,  193  ;  need  of  appointment  of, 
195 

Statistics,  necessity  of,  180 


Steel  Corporation,    168 

Stevedoring  119 

Stevens,   John  L.,   156 

Stock  companies,  premiums  of,  150;  low 
rates  made  by,  151;  reference  to,  152, 
154,  172,  174,  175,  178;  failure  of  in- 
surance by,  168;  need  of  substitute  for, 
173 

Stone  quarries,  201 

Street  railway  companies,   39 

Sub-aqueous  construction,  119 

Sub-contractors,  liability  of  employer  for 
injuries  to  employees  of,  120,  160,  184 

Sub-terranean  construction,  119 

Suicide,  186 

Supervision,  need  of,  192 

Supreme  Court  of  Iowa,  application  of  rule 
of  vice-principalship  by,  30,  31;  attitude 
of,  toward  department  of  service  rule,  32, 
33 ;  interpretation  of  railway  liability  act 
by,  39-47 ;  decision  of,  relative  to  relief 
departments,  47 ;  Temple  Amendment  up- 
held by,  48 ;  decisions  of,  relative  to  as- 
sumption of  risk,  60,  61 ;  reference  to,  67, 
68,  197 ;  members  of  commission  nomi- 
nated by,  163,  193,  194;  character  of,  171 

Supreme  Court  of  United  States,  Iowa  rail- 
way liability  act  upheld  by,  41 ;  Temple 
Amendment  upheld  by,  48 ;  decision  of, 
170 

Sweden,  workmen's  compensation  in,  93 ; 
reference  to,  303 

Switzerland,  workmen's  insurance  in,  93 ; 
compulsory  laws  of,  159;  reference  to, 
179,   188,  303 

Tables,  82,  83,  111,  113-118,  130,  132,  133, 

150,  190,  271,  280,  303 
Taxation,  179 
Temple    Amendment,    adoption    of,    47,    48 ; 

provisions  of,  48 ;  upholding  of,  by  courts, 

48,  reference  to,  68,  69 
Tenement  labor,  201 
Tennessee,  259 
Texas,  107,  240,  259,  280 
Thorn,  Alfred  P.,  215,   304 
Titanic,  sinking  of,  2 

Tools,  duty  of  employer  relative  to,  18,  30 
Trains,  negligence  in  speed  of,  19,  20,  60 
Transvaal,  303 
Trolley   wires,   20 
Tunnel  driving,    119 

Unions,  activities  of,  47,  66 
United  Mine  Workers,  157 
United    States,    abandonment    of   employers' 
liability  principles  in,   1 ;   deaths  and  in- 


INDEX 


337 


juries  caused  by  work  accidents  in,  1,  2 
possibility  of  reducing  number  of  acci 
dents  in,  2 ;  average  of  wages  in,  6 
modification  of  contributory  negligence  in 
56,  57  ;  fatality  rates  in  coal  mines  in,  88 
systems  of  indemnity  outside  of,  92  ;  unen 
lightened  system  of  indemnity  in,  107 
indemnity  legislation  in,  107-155;  refer 
ence  to,  108,  110,  111,  165,  215,  280 
necessity  for  progress  in,  155;  analyses  of 
indemnity  acts  of,  158 

Urban  utilities,  179 

Urick,  A.   L.,   302 

Ventilation,  200 
Vice-principal,  68 
Vice-principalship,  29,   30  32 
Voluntary  relief,  115 

Votes,  distribution  of,  in  indemnity  asso- 
ciation, 178,  179 

Wage-earners,  inability  of,  to  pay  cost  of 
accidents,  6-8 ;  lack  of  sympathy  of  judges 
with,  14;  rule  of  contributory  negligence 
a  hardship  to,  52  ;  limitation  of  freedom 
of,  65  ;  effect  of  work  accidents  on,  77,  78 

Wages,  indemnity  for  loss  of,  5  ;  average  of, 
in  United  States,  6;  effect  of  loss  of,  7, 
8;  reference  to,  64,  108,  150;  proportion 
of,  paid  as  indemnity,  96,  97,  101,  123- 
125,  161,  162,  186-191  ;  deduction  of 
premiums  from,    128;   differences  in,    190 

Waiting  period,  provisions  for,  117,  124,  125 

Want,  effect  of  fear  of,  8 

Waple,    Wallace    D.,    acknowledgment   to,    x 

Warning  signals,  200 

Washington,  8,  9,  108,  110,  111,  112,  113- 
118,  119,  120,  123,  124,  127,  129,  130, 
131,  133,  134,  140,  141,  142,  145,  149, 
150,  153,  168,  170,  240,  280,  281,  288, 
299 

Washington  Industrial  Insurance  Commis- 
sion,   158 

Wausau  Employers'  Mutual  of  Wisconsin, 
150 

Wastefulness  of  employers'  liability  system, 
81-84 

Waterloo,  158 

Watson,    E.   E.,    acknowledgment   to,   x 

Wayne  County  (Michigan),  work  accidents 
in,  78,  80 

Weaver,   Silas  M.,  opinion  of,   61,  230 

Well  drilling,    119 


West  Virginia,  280 

Western  Australia,  303 

Wilful  misconduct,  115,  186 

Wisconsin,  7,  9,  72,  74,  108,  109,  111,  112, 
113-118,  119,  121,  128,  134,  12S,  129, 
180,  181,  133,  134,  141,  142,  111,  IP., 
150,  151,  152,  153,  158,  169,  176,  188, 
1H9,  190,  191,  192,  195,  200,  201,  840, 
256,  259,  280,  281,  288 

Witnesses,  fees  of,   197 

Women,  wages  received  by,  6;  forcing  of, 
into  unsuitable  employments,   8 

Work  Accident  Indemnity   (see  Indemnity) 

Work   accidents    (see  Accidents) 

Working  place,  safety  of,  18,  201  ;  duty  of 
employer  relative  to,   30 

Workmen,  wages  received  by,  6;  inability 
of,  to  pay  cost  of  accidents,  6-8 ;  de- 
pendents of,  7,  8 ;  deaths  and  injuries  of, 
in  Iowa,  8,  9;  effect  of  fellow-servant  rule 
on  safety  of,  35,  36;  contributory  negli- 
gence of,  48-57 ;  accidents  due  to  fault  of, 
52;  inherent  shortcomings  of,  52-54;  as- 
sumption of  risk  by,  57-69 ;  Iowa  law 
relative  to  assumption  of  risks  by,  65-69  ; 
recovery  by,  for  injuries  under  existing 
law,  70;  investigations  of  amounts  of  in- 
demnity received  by,  73-76,  109 ;  law  in 
Iowa  favorable  to,  76;  cost  of  work  acci- 
dents borne  by,  77  ;  delay  and  uncertainty 
in  securing  indemnity  for,  78-81 ;  rights 
of  injured,  under  Iowa  law,  80,  81;  small 
benefits  accruing  to,  81;  proportion  of 
indemnity  actually  received  by,  81-84; 
relations  between  employer  and,  85,  86; 
interest  of,  in  preventing  accidents,  86, 
87;  insurance  of,  in  Germany,  96-102; 
contribution  by,  to  insurance  funds  in 
Germany,  101,  102;  lack  of  freedom  of, 
to  make  election,  143  ;  imperfect  protection 
to,  149;  reference  to,  152;  proportion  of 
compensation  received  by,  158;  schedules 
of  compensation  to,  161,  162;  sharing  of 
burden  of  indemnity  by,  180-183  ;  clothing 
of,  200  (see  also  Employees) 

Workmen's  collective  accident  insurance, 
128,  180 

Workmen's  compensation,  workings  of,  in 
Great  Britain,  94-96 

Workmen's  compensation  acts,  power  to 
make  awards  under,  141,  142 

Wrightman,    G.    A.,    302 

Wiirtenburg,   100 


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